administrative law | The Health Law Firm Blog

Question: Is Exposure to COVID-19 For Nurses and Other Healthcare Workers, Causing Illness, Disability, or Death, Considered an Employment-Related Injury Under Workers’ Comp Coverage?

By Amanda I. Forbes, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.” (Reference: World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)

Click here to view the classification by the WHO on our website.

Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment. For example, Section 440.151(2), Florida Statutes, states:

Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.

Section 440.151(2), Florida Statutes, (emphasis added). Many other states have similar requirements to those of Florida.

Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus. Therefore, as COVID-19 meets the criteria as an “occupational disease.”

Moreover, Section 440.151(1)(a), Florida Statutes, states:

Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.

Section 440.151(1)(a), Florida Statutes.

It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.): The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.

In addition, per Section 440.151(1)(c), Florida Statutes states:

Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.

Section 440.151(1)(c), Florida Statutes, (emphasis added).

With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:

If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.

Section 440.09(3), Florida Statutes (emphasis added).

Workers Compensation Benefits for Healthcare Professionals.

As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.

By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician (EMT). Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.” Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.

Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.

We want to emphasize that this is merely our preliminary opinion based on limited analysis and research. It is provided for informational purposes only. It does not constitute the provision of legal advice. Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.

For more information and more examples of employment compensation benefit cases for health care professionals, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, in patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By The Health Law Firm|2020-05-07T15:47:57-04:00May 7, 2020|Categories: Medical Education Law Blog|Tags: administrative complaint, administrative law, Department of Health (DOH), Florida health law attorney, health care fraud defense attorney, legal representation for health care professionals, licensure defense attorney|0 Comments

Two More Compounding Pharmacies Recall Drugs

By Carole C. Schriefer, R.N., J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Two different compounding pharmacies have recently recalled products due to concerns from the Food and Drug Administration (FDA). The New Jersey compounding pharmacy, Med Prep Consulting, and Clinical Specialties Compounding in Georgia, both recalled products between March 17, 2013 and March 20, 2013.

The recalls were issued as the FDA and state agencies step up regulation on compounding pharmacies across the country. These agencies are trying to prevent another widespread outbreak, like the fungal meningitis outbreak in the fall of 2012, which is responsible for 50 deaths.

Recall Upgraded in New Jersey.

Med Prep Consulting first issued a recall on March 17, 2013, for all lots of magnesium sulfate for injections after a hospital reported seeing visible particles in the containers. Three days later, the compounding pharmacy recalled all of its compounded products. Med Prep Consulting has halted production, processing and shipping. The FDA reported products distributed through March 15, 2013, in New Jersey, Pennsylvania, Delaware and Connecticut need to be returned to the company. Click here to see all the recalled products from Med Prep Consulting.

Eye Infections from Georgia Compounding Pharmacy Products.

According to Modern Healthcare, at least five people have acquired serious eye infections associated with the use of the cancer drug Avastin packaged in syringes from Clinical Specialties Compounding. At the company’s facility in Georgia the FDA raised concerns about the lack of sterility assurance. Products covered under the recall were distributed nationwide, between October 19, 2012 and March 19, 2013. Until further notice, healthcare providers are asked to stop using all of these sterile products and return them to the company. Click here to read the press release on the recall from the FDA.

Florida Compounding Pharmacy in Hot Water Due to Fungal Growth.
We have previously blogged about the problems encountered by Franck’s pharmacy in Ocala, Florida. It has been accused of distributing eye medications that contained a fungal infection. Click here for the first blog and here for the second blog on this.

Harsher Regulations on Compounding Pharmacies.

Since the widespread fungal meningitis outbreak, compounding pharmacies have fallen under heightened scrutiny. The FDA is beefing up their oversight of compounding, and, according to Modern Healthcare, the FDA and state Department of Health (DOH) agencies have been paying surprise visits to compounding pharmacies. Click here to read more from Modern Healthcare.

Common Deficiencies We See in Pharmacy Inspections.

Pharmacies and pharmacists are subject to many types of inspections. These inspections are necessary to determine whether the business and its employees are complying with state and federal laws and regulations. Administrative agencies, such as the Drug Enforcement Administration (DEA), FDA and DOH, have the authority to inspect pharmacies.

With our experience working with pharmacists and pharmacies we’ve seen a number of different inspection deficiencies. These errors may result in a complaint being filed and the beginning of the administrative law process regarding investigations and hearings.

Here are some common deficiencies often found during pharmacy inspections:

1. Pharmacy technicians not properly identified with name tags and identified as
pharmacy technicians (as opposed to pharmacists);

2. Pharmacy technicians not supervised by pharmacist;

3. Medication on shelves not properly labeled (including exact number of pills remaining in bottle);

4. Controlled substances not accurately recorded on appropriate forms; and

5. Not keeping schedule II inventory and dispensing records separate from schedule III-V records.

Click here to read a recently blog listing more deficiencies and your best defense to protect your pharmacy license and pharmacist license.

Contact Health Law Attorneys Experienced in Representing Pharmacies and Pharmacists.

The Health Law Firm represents pharmacists and pharmacies in investigations, regulatory matters, licensing issues, litigation, inspections and audits. The firm’s attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of the harsher regulations compound pharmacies are now facing? Please leave any thoughtful comments below.

Sources:

Meinhardt, Jane. “Compounding Pharmacies Set to Navigate Potential Regulations.” Tampa Bay Business Journal. (January 25, 2013). From: http://www.bizjournals.com/tampabay/print-edition/2013/01/25/compounding-pharmacies-set-to-navigate.html?s=print

Blesch, Gregg. “Georgia Compounding Pharmacy Widens Recall.” Modern Healthcare. (March 22, 2013). From: http://www.modernhealthcare.com/article/20130322/NEWS/303229959/#

Clinical Specialties. “Clinical Specialties Compounding Pharmacy Announces Voluntary Nationwide Recall of All lots of Sterile Products Repackaged and Distributed by Clinical Specialties Compounding Due to Lack of Sterility Assurance.” Food and Drug Administration. (March 20, 2013). From: http://www.fda.gov/Safety/Recalls/ucm344786.htm

About the Authors: Carole C. Schriefer is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Colorado Surgeon Accused of Botching Multiple Robotic Arm Surgeries

By Carole C. Schriefer, R.N., J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Colorado surgeon allegedly faces 14 counts of unprofessional conduct associated with the use a robotic arm used during surgeries, according to the formal administrative complaint. The Colorado Medical Board filed the complaint on April 2, 2013, alleging that from 2008 until 2010, the surgeon cut and tore blood vessels, left sponges and other instruments inside of patients, injured patients through padding and positioning, subjected some patients to overly long surgeries and had to abort kidney donation procedures because of mistakes. The surgeon is also accused of not documenting the mistakes in patient charts.

According to the Colorado Board of Medicine’s administrative complaint, the surgeon was using the da Vinci robot, manufactured by Intuitive Surgical, Inc., for surgeries.

Click here to read the formal complaint from the Colorado Medical Board.

This complaint was filed around the same time as the U.S. Food and Drug Administration (FDA) launched a review of the robotic procedures.

A Number of Patients Speak Out On Surgeries.

The complaint lists 11 patient cases allegedly mishandled by the surgeon.

In one case, a 22-year-old woman wanted to donate a kidney to her brother. She was informed by the surgeon that the robot was the “gold standard” for kidney removals and transplants. During the surgery, the surgeon allegedly injured the patient’s aorta. To stop the bleeding, the surgeon allegedly converted to an open surgery, then aborted the kidney removal. After the attempted surgery, the patient allegedly went into post-operative distress and an X-ray showed a sponge that had been left inside the patient. The patient also alleges she was left with nerve damage after being improperly padded.

In another case, the surgeon allegedly used the robot on an 86-year-old man with metastatic cancer. The surgeon allegedly injured the patient’s aorta, and the robot arm moved when it should not have, causing another tear. The patient suffered kidney failure after the operation, and the family withdrew the patient’s life support.

Surgeon Suspended for Performing Robotic Surgeries.

In the complaint, the Colorado Medical Board is asking an administrative law judge to discipline the surgeon’s license to practice medicine. An article in The Denver Post states that the surgeon had his robotic-surgery privileges suspended for three months in 2010. The hospital would not say whether or not the surgeon received new training before allowing him to use the robotic arm after his suspension.

To read the entire article from The Denver Post, click here.

FDA and Other Medical Societies Leery of Robotic Procedures.

In March 2013, the FDA began interviewing surgeons about issues with the robotic surgery units, according to Fierce Health IT. The agency is allegedly trying to figure out why there has been an uptick in adverse event reports, including damaged organs and device failures, and whether these are a result of error or design problems.

For a list of other sources discussing possible adverse outcomes from robotic surgery, please see “references” below.

The American Congress of Obstetricians and Gynecologists and the Massachusetts Quality and Patient Safety Division are also warning health care professionals about the risks associated with robotic surgeries, according to Fierce Health IT. The American Congress of Obstetricians and Gynecologists said that these types of surgeries should not be the first or second choice for women undergoing routine hysterectomies. The Massachusetts Quality and Patient Safety Division sent a letter advising doctors of the safety concerns regarding robotic surgery.

Click here to read the entire article from Fierce Health IT.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health care professional, does your facility use robotic arm surgeries? Do you believe they are the safer option? Do you think the FDA should take a closer look at these machines? Please leave any thoughtful comments below.

Sources:

Booth, Michael. “Colorado Charges Doctor in Problem-Plagued Robo-Surgeries at Porter.” The Denver Post. (April 10, 2013). From: http://www.denverpost.com/breakingnews/ci_22998041/colorado-charges-doctor-botched-robo-surgeries-at-porter

Hall, Susan. “Robo-Surgery Mistakes Land Physician in Hot Water.” Fierce Health IT. (April 15, 2013). From: http://www.fiercehealthit.com/story/robo-surgery-mistakes-land-physician-hot-water/2013-04-15

Colorado Medical Board v. Warren J. Kortz, M.D. Case Number ME 2013. Formal Complaint (April 2, 2013). From:http://www.thehealthlawfirm.com/uploads/Colo%20v.%20Warren%20Kortz%20MD.pdf

Gold, Ashley. “Health Officials Warn Complications Robotic Surgeries.” Fierce Health IT. (March 26, 2013). From: http://www.fiercehealthit.com/story/health-officials-warn-complications-robotic-surgeries/2013-03-26

Hall, Susan. “OBGYN Group: Robotic Surgeries Not Best Choice for Routine Hysterectomies.” (March 15, 2013). From: http://www.fiercehealthit.com/story/obgyn-group-robotic-surgery-not-best-choice-routine-hysterectomies/2013-03-15

Garde, Damian. “FDA Echoes Questions Over Intuitives’s Surgical Robot.” Fierce Medical Devices. (March 1, 2013). From: http://www.fiercemedicaldevices.com/story/fda-echoes-questions-over-intuitives-surgical-robot/2013-03-01

Bird, Julie. Much of Robo-Surgery Marketing ‘Unsubstantiated.’” Fierce Health IT. (July, 24, 2012). From”
http://www.fiercehealthit.com/story/much-robotic-surgery-marketing-unsubstantiated/2012-07-24

About the Authors: Carole C. Schriefer is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Tips for Medical Students and Medical Residents Accused of Irregular Behavior on the USMLE

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We frequently receive calls for consultations from students who receive a letter from the National Board of Medical Examiners (NBME) accusing the medical student or medical resident of “Irregular Behavior” on the United States Medical Licensing Examination (USMLE). In many cases these are graduates of foreign medical schools who have applied through the Examination Committee for Foreign Medical Graduates (ECFMG).

Irregular behavior can consist of many different things before, during or after taking the USMLE. What you must know is that, in effect, you are being accused of cheating.

Examples of What The USMLE Defines as “Irregular Behavior.”

Examples of the types of conduct which we have seen before include:

– Attending a commercial USMLE preparation course that provides some of the actual examination questions.

– Soliciting information on the contents or questions on the examination.

– Using a cell phone during the examination.

– Talking with another person during the examination.

– Sharing information on the types of questions or cases that were on your examination with another person or on a blog over the internet.

These are just a few. For more examples, please see an article I wrote on this by clicking here.

When Accused of Irregular Behavior Don’t Do The Following.

We have represented students accused of irregular behavior by consulting with them before and after USMLE hearings and on appealing the results. We have represented a number of examinees at the hearings held before the NBME at its headquarters in Philadelphia, Pennsylvania.

From our experience in such cases, the following are the errors that most of you will make when accused by the USMLE of irregular behavior.

1. You will fail to obtain an attorney experienced with such cases immediately upon receipt of a letter from the NBME accusing you of irregular behavior. Take this as a formal charge accusing you of, in effect, cheating. THIS IS SERIOUS.

2. You will telephone, write or e-mail the NBME and explain “your side of the story.” This will be full of admissions that will help prove the case against you and you will not even understand this. (Please note that under U.S. law any statements you make, oral or written, can be used as evidence against you in any civil, criminal or administrative proceeding. This is not the case with statements that your attorney makes on your behalf.)

3. If you submit documents or statements to the NBME in support of your case, these will not be well-organized, well-labeled and in a form simple and easy to understand. In many instances, you will not even understand the legal issues you are facing or how to refute them.

4. You will fail to request or attend in person the hearing before the NBME Committee on Irregular Behavior (“The Committee”) in Philadelphia, Pennsylvania.

5. You will fail to take an attorney experienced in such medical administrative hearings to represent you at The Committee hearing in Philadelphia.

6. You will not know how to properly present your evidence or present your own position to The Committee, if you do attend the hearing.

7. You will not know when or what kind of witnesses, including expert witnesses, you need to use to prove issues in your case before The Committee.

8. You will fail to understand and correctly respond to the questions that the many different Committee members (usually 15 or more) will ask you during the hearing.

9. You will fail to correctly follow all procedures in order to preserve your rights in the proceedings.

10. You will falsely believe that if you lose at The Committee hearing you can win on appeal or somehow sue in court and prove you are right; this is almost never correct. You will have only one chance at proving your case and this is at The Committee hearing in Philadelphia.

11. You will incorrectly believe that even if you are only suspended from taking the USMLE again for a short period of time, this will have no effect on your education or career. (Note: Your USMLE transcript will note this fact and this will probably prevent you from ever getting into a good residency program. See #1 above.)

This Is a Serious Matter, Don’t Think Otherwise.

You and your family have invested tens of thousands, if not hundreds of thousands of dollars, on your education so that you can become a physician. You have spent years of sacrifice and studying in order to become a physician. This is not the time to be cheap and to think that the cost of hiring an experienced legal counsel is too high. You could lose everything you and your family has invested in this. Do not be “penny wise and pound foolish.” You will need professional help if you are to get through this successfully. If you don’t care about these matters or you don’t believe this is a serious matter worthy of an investment for attorney’s fees, then go ahead and ignore this advice.

If you are not reading this until after you have lost the case and been found to have committed “irregular behavior” by the USMLE Committee on Irregular Behavior, I am sorry for you, but it is probably too late to do anything about it.

Contact Experienced Health Law Attorneys Today.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you faced The Committee? What was the experience like? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Healthcare Providers Service Organization (HPSO) Attorneys, Lawyers and Defense Council in Florida

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Often we learn after the fact that a health professional such as a mental health counselor, psychologist, or pharmacist has received Healthcare Providers Service Organization (HPSO) insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have HPSO Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it. Contact us, and we will help you.

Don’t Worry About Legal Bills While Your Case is Going On.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Experienced Health Law Attorneys That Will Work with Insurance Companies.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. We will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

By The Health Law Firm|2013-05-22T15:39:22-04:00June 1, 2018|Categories: Administrative law, Health Care Industry, Healthcare Providers Service Organization (HPSO), Insurance, Licensing issues, The Health Law Firm Blog|Tags: administrative law, administrative proceedings, attorney, complaint against a health care professional, complaint against a health care provider, doctor, health attorney, health care lawyer, health care professional, health care provider, health insurance, health law, health law attorney, Healthcare Providers Service Organization (HPSO) Insurance, insurance, insurance health care, investigation of a health care professional, investigation of a health care provider, legal bills, legal defense expenses, mental health counselor, pharmacist, physician, professional discipline, professional liability insurance, psychologist|1 Comment

The Doctors Company (TDC) Attorneys, Lawyers and Defense Council in Florida

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Often we learn after the fact that a health professional such as physicians, dentist and other health professionals has received The Doctors Company (TDC) Insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have TDC Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it.
The Health Law Firm Will Work with You and Your Insurance Company.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses, dentists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. We will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Medical Students and Residents Must Fight Allegations of “Irregular Behavior” on the USMLE Step Exams

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

I am constantly taking calls from medical students and residents (or future residents) relating to allegations brought against them of “irregular behavior” in connection with the United States Medical Licensing Examination (USMLE) exams. Although the term “irregular behavior” is equated by many with the word “cheating,” it is actually defined by the USMLE to mean:

Irregular behavior includes any action by applicants, examinees, potential applicants, or others when solicited by an applicant and/or examinee that subverts or attempts to subvert the examination process.

The notice that a person has been accused of irregular behavior may come in a letter from the USMLE, National Board of Medical Examiners (NBME), or Examination Committee for Foreign Medical Graduates (ECFMG). In serious cases, one might be approached by a private investigator or law enforcement authority, for example in the case of an alleged theft of an examination or illegal use of examination questions.

Regardless, any notice that you are suspected or accused of irregular behavior should be treated as an extremely serious matter that can suspend your medical education or residency and place your medical career on hold. You should immediately contact an attorney familiar with health and medical law and, especially, one familiar with USMLE, NBME and ECFMG proceedings.

Examples of What Not To Do.

A few examples of irregular behavior we have consulted on include:

1. A student soliciting information about the contents of a USMLE step examination in an online blog.

2. Individuals blogging online regarding a certain step exam preparation course they took when the course instructor allegedly used actual examination questions to teach it.

3. An individual allegedly using an iPhone during a step examination.

4. Someone setting a fire in a bathroom in the testing center where the examination was given.

5. An individual who allegedly had written notes on his arm to use during the exam.

6. Someone who wrote down notes about the exam on a piece of tissue paper after the exam was over.

No matter how trivial the matter may initially seem, it can have devastating effects. The reporting of your test results will be held up until the matter is completely resolved, thereby delaying entry into or continuation of a residency program or, in some cases, medical school graduation. Choice residencies can be lost and a promising medical career can be placed on hold.

If irregular behavior is confirmed, test scores will be voided, your transcript of USMLE tests will be annotated with the fact that you were found to have committed irregular behavior and you may not be allowed to retake the exams for a period of time. This can really screw up your life.

Ask for a Hearing and Be Prepared.

If you are accused of irregular behavior, you will be given the right to have a hearing before a committee of the USMLE which will hear evidence on the matter. Ask for the hearing! Do not waive it.

You will have the right to submit documents on your own behalf. Do this. Use any favorable document that supports your side of the story, shows your good character, shows your academic and clinical performance and mitigates from the seriousness of the alleged conduct.

Attend the hearing in person and with your attorney. You have this right. Do not expect to win a hearing if you do not attend it yourself to answer any questions the committee may have. These committee hearings are all held at MBE headquarters in Philadelphia, Pennsylvania, so it may be a challenge to attend. But you must do so; this may be the most important hearing of your life.

Retain expert witnesses to support you if appropriate. In matters where a statistical extrapolation is used against you, a statistics expert can be a valuable asset.

Many times the facts of the situation turn out to be far different from what the USMLE secretarial has initially reported. But you must avail yourself to the procedures and opportunity to prove this.

Don’t delay. At your first notice, contact an experienced attorney to represent you. The stakes are too high to gamble on handling it yourself.

Contact Experienced Health Law Attorneys Today.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you faced the Committee? What was the experience like? Did you retain experienced legal counsel? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Agency Attorney Prosecuting Case Should Not Also Be in Position of Advising The Agency; Possible Bias Denies Due Process

McAlpin appealed an order of the Criminal Justice Standards and Training Commission (“Commission”) suspending his law enforcement certification for eighteen months. The Commission filed an administrative complaint alleging misconduct during the course of a criminal investigation. A formal administrative hearing was held and a recommended order was issued.

At the Commission hearing to consider the recommended order, the attorney who prosecuted the case against McAlpin was present and offered advice to the Commission. The Commission’s staff had prepared a memorandum to the Commission recommending an increase in the recommended penalty to revocation of McAlpin’s license. It was not clear who prepared the staff memorandum. However, it was clear the prosecuting attorney had prepared exceptions to the recommended order for the agency.

On appeal, the court reversed and remanded for a new Commission hearing. While the Commission did not ultimately adopt the agency’s recommendation of an increased penalty, the court held that the staff attorney’s enhanced access to the Commission undermined the Commission’s function as an unbiased reviewer of the recommended order.

The court did note that it was not inherently inappropriate to consolidate investigative, prosecutorial and adjudicatory authority in a single agency. Each case must be considered on its unique factual background.

Source:

McAlpin v. Criminal Justice Standards and Training Comm’n, 120 So. 3d 1260 (Fla. 1st DCA 2013)(Opinion filed September 13, 2013).

About the Author: The forgoing case summary was prepared by Mary F. Smallwood, Esquire, of the Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013).

By The Health Law Firm|2014-02-17T09:00:30-05:00June 1, 2018|Categories: Administrative law, Appeal, The Health Law Firm Blog|Tags: administrative complaint, Administrative Hearing, administrative law, attorney, attorney prosecuting case, criminal justice standards, due process, lawyer, revocation, revocation of license, suspended certification, training commission|0 Comments

After Investigation Has Ended, Even Investigator’s “Mental Impressions” Are Subject to Release Under Public Records Act

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

The City of Avon Park (“City”) terminated Michael Rowan’s employment as Chief of Police. In the subsequent administrative hearing, at issue was Rowan’s investigation of certain city council members and alleged deletion of certain information from his work computer.

An investigator with the State Attorney’s Office was called in to investigate those issues; he prepared a report of his findings. The City subpoenaed the investigator to appear as a witness at the administrative hearing on Rowan’s termination, and to bring his report, which the City wanted to rely on. The State sought a circuit court order quashing the subpoena issued to the investigator. It also sought to prevent disclosure of portions of the report which constituted mental impressions of the investigator. The circuit court granted in part and denied in part the State’s petition. It concluded the investigator’s mental impressions were exempt from the Public Records Act and entered a protective order limiting the investigator’s testimony and protecting the mental-impression portions of the report.

The City appealed, arguing the report should be admissible in full and Rowan’s testimony should not be limited; Rowan cross-appealed, arguing that he should not be required to testify at all. The Second District Court of Appeal reversed the trial court’s decision excluding from evidence the portion of the report containing the investigator’s mental impressions. The court pointed to section 119.071(1)(d)1., Florida Statutes, which protects mental impressions from disclosure only until the conclusion of the litigation or adversarial administrative proceedings. In this case, the court concluded that the investigation had ended and no charges had been filed. Therefore, the investigator’s mental impressions were no longer protected.

Source:

City of Avon Park v. State of Florida, 117 So. 3d 470 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section Newsletter, Col. 36, No. 2 (Dec. 2013).

By The Health Law Firm|2014-02-24T09:00:39-05:00June 1, 2018|Categories: Administrative law, Public Records, The Health Law Firm Blog|Tags: Administrative Hearing, administrative law, adversarial administrative proceedings, litigation, mental impressions, mental impressions protected, public records, public records act, State Attorney's Office, subpoena|0 Comments

If Denial of Licensure is Disciplinary in Nature, Then Agency Must Prove Case by “Clear and Convincing Evidence”

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

Davis Family Day Care Home (“Davis”) was issued a license as a family day care home in 2007. Davis applied annually for renewal of that license. In 2011, Davis applied for renewal of its license and also applied for a license as a large family child care home.

The Department of Children and Families (“DCF”) proposed to deny both the renewal application and the application for licensure as a large family child care home. Davis sought an administrative hearing on both denials. After an administrative hearing, the administrative law judge (“ALJ”) issued a recommended order recommending issuance of the renewal on a probationary basis and issuance of the large family child care home application on a provisional basis. The ALJ held that the burden of proof for the license denial was clear and convincing evidence. DCF rejected that conclusion, and provided a substituted conclusion of law that the burden of proof was by competent substantial evidence. DCF adopted the ALJ’s recommendation to renew the family day care home on a probationary basis, but denied the application for a large family child care home license.

On appeal, the court reversed and remanded. It held that DCF had misused the appellate “competent substantial evidence” standard of review as the burden of proof.

With respect to the appropriate burden on DCF, the court held that DCF must establish by clear and convincing evidence that the license should be denied, and not by a preponderance of the evidence. The court opined that the denial of the license for a large family child care home was essentially a disciplinary action since it was predicated on violations allegedly committed under the day care home license. The statute relied on by DCF authorized imposition of “disciplinary sanctions,” including denial or revocation of a license, for violations of the licensing laws. The court noted that DCF itself had acknowledged the disciplinary nature of its action, referring to its initial decision letter as an “administrative complaint.”

While recognizing that the court in Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 2006), had applied the preponderance of the evidence burden of proof (instead of clear and convincing evidence) to license application proceedings, the court noted that section 120.57(1), Fla. Stat., had been amended since the Osborne decision. Section 120.57(1)(j), Fla. Stat., now provides that the preponderance of the evidence standard applies except in penal or disciplinary actions. In this case, the statute made clear that DCF was taking disciplinary action.

Source:

Davis Family Day Care v. Department of Children and Family Servs., 117 So. 3d 464 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013).