The 25 Biggest Mistakes Physicians Make After Being Notified of a Department of Health Complaint

The investigation of a complaint which could lead to the revocation of a physician’s license to practice medicine and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH).  This is a very serious legal matter and it should be treated as such by the physician who receives it.  Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over, and they have attempted to represent themselves throughout the case.  Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the physician.

These are the 25 biggest mistakes we see in the physician cases we are called upon to defend after a DOH investigation has been initiated:

  1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.
  2. Contacting the DOH investigator and providing him/her an oral statement or oral interview.  (Note:  There is no legal requirement to do this.)
  3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so.  (Note:  There is no legal requirement to do this.)
  4. Failing to carefully review the complaint to make sure it has been sent to the correct physician (Note:  Check name and license number).
  5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the physician’s license until all proceedings are concluded.  (Note:  This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)
  6. Providing a copy of the physician’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so.  (Note:  There is no legal requirement to do this.
  7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.
  8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.
  9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
  10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.
  11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.
  12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.
  13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.
  14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
  15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
  16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.”  The matter does not ever just go away.
  17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
  18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.
  19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
  20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
  21. Retaining “consultants” or other non-lawyer personnel to represent them.
  22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
  23. Attempting to defend themselves.
  24. Believing that because they know someone on the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
  25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

 Bonus Point:

 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed.  There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the physician may be disciplined.  In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel.  In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing.  The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

For more information, on how to respond to a DOH investigation, or other legal matters, visit our website.

Board of Dentistry Considers Adding Failure to Provide Dental Records to “Citation” Offenses

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 21, 2014, it discussed a proposed change to Rule 64B5-13.0046, Florida Administrative Code. The amendment would add a provision for failing to timely produce dental records to patients. This addition should help dentists avoid receiving permanent discipline on their records for a minor technical violation.

Considered was the addition of the following language to the existing Rule, listing citation-approved offenses:

Violation of subsection 466.028(1)(n), F.S., failure to timely make available to a patient or client, or to his legal representative or to the Department, if authorized in writing by the patient, copies of documents in the possession or under control of the licensee, which relate to the patient or client. Timely means less than 30 days from the receipt of the written authorization. The subject of the citation has 10 days from the date the citation becomes a final order to release the patient records. Failure to comply will result in a $1,000.00 fine.


Citation vs. Charge
.

TIDCHAAn administrative citation such as those discussed is not considered to be discipline, but an alternative to discipline. The dentist can accept the citation and pay the fine; therefore the citation will not be recorded on his/her record as discipline. For more on this issue, read my blog on citations against physicians and other health professionals.

This is a good development for dentists as it allows the resolution of minor technical violations of statutes and rules without the very undesirable effect of creating a disciplinary record. We sometimes jokingly refer to these as “speeding tickets” since they carry a fine but are not considered to be permanent disciplinary action.

Carefully Review and Promptly Respond in Citation Cases.

Take immediately action on any proposed citation you receive from the Department of Health (DOH). Consult immediately with a health attorney who is experienced at representing dentists in Board of Dentistry matters. Click here for a previous blog on why you should speak with an attorney first.

In most cases, you will probably be advised to accept the citation and pay the fine. If so, be sure to submit the signed agreement, ending it by a method that documents sending and receipt (such as certified mail, return receipt requested), and keep a copy of all documents you submit. Make sure it is received (not sent) by the due date. Call to make sure it was received.

For additional information on citations in disciplinary cases, click here.

In Limited Circumstances, You May Not Want to Accept the Citation.

insurance policyIn limited circumstances, it may not be advisable to accept a citation. This may occur if there is pending litigation involving the subject of the citation. If the wrong person is named in the citation, this may be another reason for not accepting it. If you did not commit the offense and you are sure you can prove this, you may also desire to not accept the citation. This is especially true if you have dental liability insurance coverage which pays for a legal defense in such administrative disciplinary cases involving professional license defense.

For more information on dental license defense, read this previous blog.

If You Do Not Accept the Citation, Be Prepared for an Administrative Complaint.

If you do not accept the citation within the limited time given (usually 30 days), or if you send back a statement regarding why it is unfair or why you did not commit the violation, this will usually be treated as a statement disputing material facts. In this event, the case will be treated as though you were requesting a formal administrative hearing. You will be given a regular formal hearing (trial) with an administrative law judge from the Division of Administrative Hearings (DOAH). For information on hearings in dental cases, click here.

Be Sure Your Staff Knows How to Treat Record Requests.

Be sure that when your office receives a request for a patient’s dental chart that the request is promptly reviewed by someone in management. Management must make sure the authorization or subpoena is valid (remember HIPAA) and that the record is provided in a timely manner. Paying attention to such requests may allow you to detect and act on potential dental medical malpractice claims or DOH complaints. You should have a written office policy on this that every employee has signed.

Remember you are not authorized to withhold a patient’s dental record because the patient has not paid a bill. You are not authorized to withhold the chart because you are angry at the patient or the patient has threatened to sue you. Be sure to provide the patient (or his/her representative) a copy of the record within 30 days. Keep a copy of the letter transmitting the copy in the chart and annotate the HIPAA medical information disclosure form in the record.

Comments?

What do you think of a citation versus a charge in regard to promptly getting patients their dental records? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website http://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 © 1999-2015 The Health Law Firm. All rights reserved.

 

Advanced Practice May Mean Even More Legal Issues for ARNPs

The advanced nurse is a registered nurse (RN) who has completed some form of advanced nursing education and training. Two types of advanced nurses are the advanced registered nurse practitioner (ARNP) and the certified nurse specialist. In Florida, there are three types of certified nurse specialists: certified registered nurse anesthetists, certified nurse midwives, and nurse practitioners. The potential risk of liability for an advanced nurse is as real as the risks for any other nurse. In addition to all of the legal issues that a registered nurse is faced with, the advanced nurse is susceptible to even more legal issues.

Advanced nurses are held to higher standards of care than RNs or licensed practical nurses (LPNs) because of the higher degree of education and training that an advanced nurse is required undergo. Advanced nurses are required to meet further certification requirements in order to become licensed. The additional certification requirements were established because advanced nurses have a much broader scope of practice than RNs or LPNs.

An advanced nurse is held to all of the same duties and standards as a RN, as well as additional duties that are placed on the advanced nurse because of advanced training. A failure to uphold the duties of a nurse can lead to the same consequences that a registered nurse could face, including action being taken by the Board of Nursing against the nurses license.

Advanced Registered Nurse Practioner (ARNP)

In Florida, an advanced registered nurse practitioner (ARNP) can only perform medical acts of diagnosis, treatment and operation under the supervision of a Florida-licensed medical doctor, osteopathic physician, or dentist.

The Board of Nursing, has established rules, pursuant to Florida Statutes, which regulate the requirements for a protocol between a physician or a dentist and an ARNP. The protocol must be in writing and signed by both the ARNP and the physician or dentist, showing a mutual agreement between the parties. The protocol must also include a description of the duties of the ARNP; a description of the duties of the physician or dentist; the management areas for which the ARNP is responsible, including the conditions for which therapies may be initiated and the treatments that may be initiated by the ARNP, depending on patient condition and judgment of the ARNP; and the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order. The protocol must include a provision for annual review by the parties which are privy to the protocol

In addition, the original protocol must be submitted to the Board within thirty days of the renewal of the ARNP’s license. A copy of the protocol and a copy of the notice required by Section 458.348(1), Florida Statutes, shall be kept at the site of practice of each party to the protocol. Any alterations to the protocol or amendments should be signed by the ARNP and the physician, or dentists and filed with the Board within 30 days of the alteration to be kept in the Department of Health for filing purposes only. Specific conditions and a procedure for identifying those conditions that require direct evaluation or specific consultation by the physician or dentist must be contained within the protocol.

Certified Registered Nurse Anesthetists (CRNA)

Administration of anesthesia by a certified registered nurse anesthetists requires special training and certification. Oversight and availability of an anesthesiologist is required by most organizations. The major risks for registered nurse anesthetists include the improper placement of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

Nurse Practitioner (NP)

A nurse practitioner, NP, is a registered nurse who has completed the necessary education to engage in primary health care decision making. A physician may not delegate a task to a NP when regulations specify that the physician must perform it personally or when the delegation is prohibited by state law or by an organizations own policies. A NP who practices outside of her scope of practice can be sanctioned by the Department of Health and if an injury occurs to a patient that NP can be civilly liable to the patient.

Certified Nurse Midwives (CNM)

Nurse midwives provide comprehensive prenatal care including delivery for patients who are at low risk for complications. Nurse midwives manage normal prenatal, intrapartum and postnatal care. In addition, nurse midwives will care for newborns as long as there are no complications. Nurse midwives also provide primary care for women’s issues from puberty to post menopause. The standard of care for a certified nurse midwife is that of a reasonably prudent certified nurse midwife engaged in the practice obstetrics and gynecology.

DEPARTMENT OF HEALTH (DOH) INVESTIGATION

One of the biggest mistakes an advanced nurse makes when being investigated by the Department of Health, DOH, is failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation process. If the advanced nurse does not make an objection to the DOH investigators request for a copy of a patient’s medical record, he or she is required to forward the medical record to the investigator. A failure to comply with this can lead to further disciplinary action against a nurse’s license.

For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.

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