disciplinary actions | The Health Law Firm Blog

VA Physicians and Health Professionals Should Fight Allegations of Substandard Care in Peer Review Matters

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

I have represented physicians, psychologists, nurse practitioners, nurses and other health professionals working in Veterans Administration (VA) medical centers and clinics throughout the United States. My representation has included personnel and employment issues, disciplinary actions, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions and appeals.

If a complaint involving allegations of lack of clinical competence or skill is made, it is extremely important for the physician or nurse practitioner to retain the services of an experienced health lawyer to represent him or her immediately. This is not the time to seek the cheapest attorney you can find. You need skilled representation by an advocate who knows medical terminology, understands medical issues and procedures, knows physicians, and has experience with fair hearings.

You Have Rights.

VA Handbook 1100.19, Credentialing and Privileging, requires that the VA hospital afford you due process of law and fundamental fairness at every step of the process in any clinical privileges action. This includes timely advance notice of the specific allegations made against you, the evidence that is to be used against you, legal representation, advance notice of witnesses and documents that may be introduced against you, the opportunity to prepare a defense to the allegations, the right to cross examine witnesses, the right to introduce evidence (documents and witnesses, including expert witnesses) in your defense, a neutral and unbiased hearing panel, and other such rights. Attorneys who are not familiar with such hearings may be unaware of your rights or how to properly exercise and safeguard them.

How to Take Care of Your License.

Don’t seek legal advice from your colleagues, from your accountant or from an attorney who does not specialize in such matters. We don’t recommend shopping around for the cheapest attorney you can find. Please do not hire a personal injury attorney, a civil litigation attorney, and employment law attorney or any other attorney without health law experience. Your professional life, career and medical license are at stake. You are in the fight of your life. Treat it as such.

If you were diagnosed with a brain tumor, would you attempt to perform your own brain surgery? Would you shop around to find the cheapest neurosurgeon to perform the surgery? Or would you look for the best? Yet, physicians routinely believe they can represent themselves in such matters. In our experience, this simply is not the case.

Contact an Experienced Health Law Attorney Before You Do Anything.

Far too frequently we are contacted by physicians after the investigation has been completed, after the hearing has been held and after the physician’s clinical privileges have been revoked. Except for an appeal on narrow grounds, little can be done.

If the VA revokes your clinical privileges, by regulation, this will be reported to the NPDB and to every state in which you have a license. The NPDB report remains on your file for 50 years. Any time in the future you apply for clinical privileges, for a medical license or for medical malpractice insurance, this report will come up and cause you serious problems. It is extremely difficult, if not impossible, to obtain employment or to obtain clinical privileges in any hospital or institution with such a NPDB report on your file. Additionally, any state in which you hold a license will also open an investigation against your medical license.

NPDB reports can be mitigated by filing an explanatory rebuttal (as is your right) or by filing a request for a Secretarial Review (appeal). We can do this for you. However, it is best to prevent a NPDB report from being filed to begin with.

Contact a Health Law Attorney Experienced in the Representation of Veterans Administration (VA) Physician Representation and Military Physician Representation.

The attorneys of The Health Law Firm have represented physicians, psychologists, nurse practitioners, nurse and other health professionals working in Veterans Administration medical centers and clinics throughout the United States. Representation has included personnel and employment issues, disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions and appeals.

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.

Appealing Final Orders and Emergency Suspension Orders (ESOs)

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

George F. Indest III, Board Certified by The Florida Bar in Health Law

The professional boards for licensed health professionals in Florida, such as the Board of Nursing, are all under the Florida Department of Health (DOH). Each board is responsible for disciplinary actions and other matters regulating the professions under its authority. The investigators and attorneys assigned for Board of Nursing matters all work for or are assigned to the DOH. The Florida DOH is headed up by the Florida Surgeon General. I think of the DOH as the umbrella agency over the professional boards or as a parent corporation which owns many subsidiary corporations.

Administrative Procedures Governing Investigations and Disciplinary Actions

All agency actions, especially disciplinary actions and investigations, are governed by the Florida Administrative Procedure Act (APA), Chapter 120, Florida Statutes. The Florida APA is modeled after the Federal Administrative Procedure Act. However, in addition to the Florida APA, DOH investigations and hearings may also be governed by several different provisions of Chapter 456, Florida Statutes, a set of laws which govern all licensed health professionals.

For example, Section 456.073, Florida Statutes, gives certain procedural steps that must be followed in investigations and probable cause hearings involving complaints against nurses and other health professionals. Section 456.073(13), Florida Statutes, is a new section added several years ago that provides a six (6) year “statute of limitations” for many disciplinary matters; but there are many exceptions to this.

Section 456.074, Florida Statutes, gives the Surgeon General the authority to issue emergency suspension orders (or “ESOs”) in certain cases. Section 456.076, Florida Statutes, authorizes the establishment of treatment programs for impaired health professionals and offers some alternatives to disciplinary action. To date, the only recognized programs are the Intervention Project for Nurses (IPN) (which covers all nursing professionals) and the Professionals Resource Network (PRN) (which covers almost all other health professionals). Section 456.077, Florida Statutes, authorizes nondisciplinary citations for certain offenses. Section 456.078, Florida Statutes, authorizes mediation for certain offenses.

Mistaken Advice Regarding Appeals

We are often consulted by nurses after they have an emergency suspension orders (or ESOs) entered against them or after they have a Final Order for disciplinary action entered against them. We often hear that they consulted an attorney who advised them at an earlier stage of the proceedings to not worry about putting together and presenting a defense or disputing the charges at a formal administrative hearing. We are told that they have been mistakenly advised that they should just wait and file an appeal because they are more likely to win on appeal.

This is, of course, incorrect advice. If you compare these proceedings to criminal investigations, would any competent attorney advise you to not worry about preparing for a trial or contesting the charges at a trial? Would any competent attorney advise you to just wait until you are convicted, because you could then file an appeal? No, of course not. This is because appeals are based on legal defects in the proceedings and do not involve any presentation of new facts that are not already in the record. Additionally, very few cases are reversed on appeal, whether criminal, civil or administrative in nature. So why give up your best shots at winning a case: presenting a good case of factual information and documents at the investigation level or disputing the charges at a formal hearing?

Don’t Try to Be Your Own Attorney on an Appellate Matter

There are, of course, many valid legal grounds for appeals of emergency suspension orders (ESOs) and Final Orders. However, you have to understand the law and the procedural rules that govern such matters in order to be able to identify them and argue them on appeal. In addition, appellate law is a legal specialty of its own. If you are not familiar with researching case law and writing legal briefs, you should not be attempting to appeal your own case. Would you attempt to perform brain surgery on yourself? If so, you should get your head examined. The courts of appeal are far more exacting in their requirements than trial courts are. See The Florida Rules of Appellate Procedure. However, most Florida courts of appeal also have their own local rules which may apply to appeals.

Grounds for appeal of an Emergency Suspension Order (ESO) include that less restrictive means of protecting the public were available or that the conduct alleged does not meet the legal requirement for imposing such a suspension. Grounds for appeal of a Final Order include that the punishment it gives exceeds the disciplinary guidelines that each board has and that proper procedures were not followed which deprived the respondent of his or her right to a fair hearing. There are many other grounds which one who practices regularly before the Board will be able to identify and raise in an appeal.

Where to Appeal May Be an Issue

The notice of appeal must be filed with the clerk of the DOH. However, a copy must also be filed with the appropriate appellate court having jurisdiction. The First District Court of Appeal in Tallahassee will have jurisdiction in almost all DOH and Agency for Health Care Administration (AHCA) appeals. However, the District Court of Appeal which has jurisdiction over the county in which the respondent health professional resides will also have jurisdiction. If the appellate case law of one of these is more favorable than the other, from a strategic viewpoint, it may be better to file in the one with the more favorable case law.

Alternative Actions to an Appeal May be Appropriate

Furthermore, there may be more effective and less expensive methods of obtaining relief from an emergency suspension orders (ESOs) or Final Order than an appeal. If you are subject to an emergency suspension orders (ESOs), you have the right to an expedited hearing. Sometimes this will result in quicker relief than appealing it. If you are subject to a Final Order that has been issued in error or there was some mistake in the proceedings that led up to it, the Board may be inclined to reconsider the matter and amend it.

Always Carry Professional Liability Insurance that Includes Licensure Defense Coverage

We continue to recommend that all nursing personnel, especially those who work in hospitals, nursing homes or for agencies, carry your own professional liability insurance. If you do purchase insurance, make sure it has professional license defense coverage that will pay for your legal defense in the event a complaint is filed against your nursing license. Usually coverage of up to $25,000 comes with most good nursing liability policies. There are many companies that sell such insurance for as little as $150 per year. However, if you can get additional coverage, $50,000 is more likely to cover any foreseeable investigations, hearings and appeals.

Seek Legal Advice and Prepare Your Defenses Early

Always seek legal advice as soon as you suspect there may be a complaint of any kind or an investigation of any kind. Don’t hide your head in the sand and think that the investigation could not possibly be about you. Talk to an attorney before you talk to anyone else. A good attorney will help to save you from making mistakes that could compromise a good legal defense.

Call now or visit our website www.TheHealthLawFirm.com. to set up a consultation on any of the above issues.

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.

Disclaimer: This article is for general information and education purposes only and must not be regarded as legal advice.

By The Health Law Firm|2024-03-14T10:01:04-04:00May 15, 2018|Categories: Administrative Complaints, Administrative Hearing, Board of Nursing, Defense, Department of Health, Emergency Suspension Order, Nurse License|Tags: administrative procedures, agency actions, Agency for Health Care Administration (AHCA), appeal, appellate law, Department of Health (DOH), disciplinary actions, emergency suspension orders (ESO), expedited hearing, Florida Board of Nursing, grounds for appeal, impaired provider programs, Intervention Project for Nurses (IPN), investigations, license defense insurance, motion for reconsideration, motion to amend, nondisciplinary citations, nursing liability insurance, Professionals Resource Network (PRN)|Comments Off

Appealing Final Orders and Emergency Suspension Orders (ESOs) from the Florida Board of Nursing

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

The professional boards for licensed health professionals in Florida, such as the Board of Nursing, are all under the Florida Department of Health (DOH). Each board is responsible for disciplinary actions and other matters regulating the professions under its authority. The investigators and attorneys assigned for Board of Nursing matters all work for or are assigned to the DOH. The Florida DOH is headed up by the Florida Surgeon General. I think of the DOH as the umbrella agency over the professional boards or as a parent corporation which owns many subsidiary corporations.

Administrative Procedures Governing Investigations and Disciplinary Actions.

All agency actions, especially disciplinary actions and investigations, are governed by the Florida Administrative Procedure Act (APA), Chapter 120, Florida Statutes. The Florida APA is modeled after the Federal Administrative Procedure Act. However, in addition to the Florida APA, DOH investigations and hearings may also be governed by several different provisions of Chapter 456, Florida Statutes, a set of laws which govern all licensed health professionals.

For example, Section 456.073, Florida Statutes, gives certain procedural steps that must be followed in investigations and probable cause hearings involving complaints against nurses and other health professionals. Section 456.073(13), Florida Statutes, is a new section added several years ago that provides a six (6) year “statute of limitations” for many disciplinary matters; but there are many exceptions to this.

Section 456.074, Florida Statutes, gives the Surgeon General the authority to issue emergency suspension orders (or ESOs) in certain cases. Section 456.076, Florida Statutes, authorizes the establishment of treatment programs for impaired health professionals and offers some alternatives to disciplinary action. To date, the only recognized programs are the Intervention Project for Nurses (IPN) (which covers all nursing professionals) and the Professionals Resource Network (PRN) (which covers almost all other health professionals). Section 456.077, Florida Statutes, authorizes nondisciplinary citations for certain offenses. Section 456.078, Florida Statutes, authorizes mediation for certain offenses.

Mistaken Advice Regarding Appeals.

We are often consulted by nurses after they have an emergency suspension orders (or ESOs) entered against them or after they have a Final Order for disciplinary action entered against them. We often hear that they consulted an attorney who advised them at an earlier stage of the proceedings, after they received a letter from a DOH investigator advising that they were being investigated, to not worry about putting together or presenting any defense at that stage. We often hear that they consulted an attorney who advised them not to dispute the charges at a formal administrative hearing or not to request a formal administrative hearing. We are told that they have been mistakenly advised that they should just wait and file an appeal because they are more likely to win on appeal.

This is, of course, incorrect advice. If you compare these proceedings to criminal investigations, would any competent attorney advise you to not worry about preparing for a trial or contesting the charges at a trial? Would any competent attorney advise you to just wait until you are convicted, because you could then file an appeal? No, of course not. This is because appeals are based on legal defects in the proceedings and do not involve any presentation of new facts that are not already in the record. Additionally, very few cases are reversed on appeal, whether criminal, civil or administrative in nature. So why give up your best shots at winning a case: presenting a good case of factual information and documents at the investigation level or disputing the charges at a formal hearing?

Don’t Try to Be Your Own Attorney on an Appellate Matter.

There are, of course, many valid legal grounds for appeals of ESOs and Final Orders. However, you have to understand the law and the procedural rules that govern such matters in order to be able to identify them and argue them on appeal. In addition, appellate law is a legal specialty of its own. If you are not familiar with researching case law and writing legal briefs, you should not be attempting to appeal your own case. Would you attempt to perform brain surgery on yourself? If so, you should get your head examined. The courts of appeal are far more exacting in their requirements than trial courts are. See The Florida Rules of Appellate Procedure. However, most Florida courts of appeal also have their own local rules which may apply to appeals.

Grounds for appeal of an ESO include that less restrictive means of protecting the public were available or that the conduct alleged does not meet the legal requirement for imposing such a suspension. Grounds for appeal of a Final Order include that the punishment it gives exceeds the disciplinary guidelines that each board has and that proper procedures were not followed which deprived the respondent of his or her right to a fair hearing. There are many other grounds which one who practices regularly before the Board will be able to identify and raise in an appeal.

In many cases, it would be completely useless to appeal an ESO. You would just waste time and money by doing so, with little or no chance to win or have it reversed. You might be far better off requesting an expedited formal hearing, to which you are entitled in an emergency suspension case, and get your case heard as soon as possible. You need the advice and guidance of an experienced attorney to help you figure out what the best course of action is in your case.

Where to Appeal May Be an Issue.

The notice of appeal must be filed with the clerk of the DOH. However, a copy must also be filed with the appropriate appellate court having jurisdiction. The First District Court of Appeal in Tallahassee will have jurisdiction in almost all DOH and Agency for Health Care Administration (AHCA) appeals. However, the District Court of Appeal which has jurisdiction over the county in which the respondent health professional resides will also have jurisdiction. If the appellate case law of one of these is more favorable than the other, from a strategic viewpoint, it may be better to file in the one with the more favorable case law.

Alternative Actions to an Appeal May be Appropriate.

Furthermore, there may be more effective and less expensive methods of obtaining relief from an ESO or Final Order than an appeal. If you are subject to an ESO, you have the right to an expedited hearing. Sometimes this will result in quicker relief than appealing it. If you are subject to a Final Order that has been issued in error or there was some mistake in the proceedings that led up to it, the Board may be inclined to reconsider the matter and amend it. This would require you to file a motion for reconsideration with the Board itself.

Always Carry Professional Liability Insurance that Includes Licensure Defense Coverage.

We continue to recommend that all nursing personnel, especially those who work in hospitals, nursing homes or for agencies, carry your own professional liability insurance. If you do purchase insurance, make sure it has professional license defense coverage that will pay for your legal defense in the event a complaint is filed against your nursing license. Usually coverage of up to $25,000 comes with most good nursing liability policies. There are many companies that sell such insurance for as little as $100 per year. However, if you can get additional coverage, $50,000 is more likely to cover any foreseeable investigations, hearings and appeals. Even higher limits can be purchased for a few dollars more from many insurance companies.

Seek Legal Advice and Prepare Your Defenses Early.

Always seek legal advice as soon as you suspect there may be a complaint of any kind or an investigation of any kind. Don’t hide your head in the sand and think that the investigation could not possibly be about you. Talk to an attorney before you talk to anyone else. A good attorney will help to save you from making mistakes that could compromise a good legal defense.

Call the attorneys of The Health Law Firm to set up a consultation on any of the above issues. To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you find this blog helpful? 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.

Florida Dentist Performs Disappearing Act With Patients’ Money

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

A Pensacola, Florida, dentist has disappeared, with his patients’ cash, and now the Escambia Sheriff’s Office is looking for both, according to a number of news sources. According to the Pensacola News Journal, the dentist closed his practice months ago without alerting his patients or performing services for which they had already paid. On January 23, 2014, the sheriff’s office sent out a request for former patients of the dentist to come forward.

Click here to read the Pensacola News Journal article.

Dentist’s Checkered Past.

According to the Florida Department of Health (DOH), in 2003 and 2006, the dentist had disciplinary actions taken against him by the Florida Board of Dentistry. The Board ruled that the dentist was negligent and failed to meet minimum standards of dental performance for misdiagnosing a patient and failing to correct the patient’s dental issues. The Board also ruled that the dentist misrepresented himself as an orthodontic specialist, when he was a general practice dentist practicing in the area of orthodontics. Click here to view the discipline cases.

Currently, the DOH website lists the dentist’s license as active.

Victims Paid for a Number of Services Never Performed.

According to the Escambia Sheriff’s Office, a number of former patients have already come forward. They claim they paid for braces, dentures and other orthodontic work that was never performed. The sheriff’s office is looking for other former patients. The ABC station in Pensacola is reporting that these victims are organizing themselves on a Facebook group.

Click here to watch the news story.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

Our firm also routinely represents physicians, dentists, orthodontists, medical groups, clinics, pharmacies, home health care agencies, nursing homes and other health care providers in Medicare and Medicaid investigations, audits and recovery actions.

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

Comments?

What do you think of this story? Please leave any thoughtful comments below.

Sources:

Robinson, Kevin. “ECSO: Investigators Seeking Victims of Disappearing Dentist.” Pensacola News Journal. (January 23, 2014). From: http://www.pnj.com/article/20140123/NEWS11/140123006/ECSO-Investigators-seeking-victims-disappearing-dentist?nclick_check=1

Fernandez, Jenise. “Updated: Orthodontist Disappearance Investigation.” WEAR. (January 23, 2014). From: http://www.weartv.com/news/features/top-stories/stories/updated-orthodonist-disappearance-investigation-40700.shtml

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.