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Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 1

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will concentrate on those licenses by the state DOH in this blog.

Overview.

What few people (even attorneys) know is that cases which involve discipline against a professional’s license are treated as “punitive” or “penal” cases. This means the standards applied to them, at least in Florida, are the same that are applied to criminal cases.

Therefore, if the statute that is being charged is unclear or ambiguous, the courts apply a “strict scrutiny” standard. If the language of the statute does not clearly prohibit the acts being charged or is unclear about being covered by the statute, then there should be a ruling in favor of the one charged.

Additionally, rights that apply in criminal cases, such as the right to have an attorney and the right to not be compelled to be a witness against oneself found in the Fifth Amendment of the U.S. Constitution, also apply to administrative cases involving discipline against a license holder.

The state has a higher burden of proof in an administrative licensure case, as well. The burden of proof that applies in a civil case, “preponderance of the evidence” (also described as the greater weight of the evidence, the preponderance of the evidence or more than fifty percent), does not apply in administrative discipline cases. Instead a higher burden, “clear and convincing evidence” applies. Therefore, if the evidence supports the license holder’s position, just as much as it supports the state’s case, the state loses.

How Constitutional Rights Are Involved.

The Fifth Amendment of the United States Constitution provides individuals protection against self-incrimination, stating:

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

Note that in Florida, as in most states, a professional license is considered to be a property right which cannot be taken by the state without due process of law.

Article I, Section 9 of the Constitution of Florida also provides similar protections stating:

No person shall be deprived of life, liberty or property without due process of law . . . or be compelled in any criminal matter to be a witness against oneself.

In addition, case law in Florida has upheld as a protected right the individual’s ability to practice a profession of choice if otherwise so qualified. To take away this right requires due process of law and reviewing courts will apply a strict scrutiny standard.

Under some states’ constitutions or state statutes there is a right to work or a right to practice the profession of one’s choice; this further lends credibility to an argument that agency actions which take away this substantial right should require a greater burden than that required in a mere civil case (i.e., preponderance of the evidence”). However, even without such a provision in the state constitution, a professional license (or the right to practice a profession) is a substantial right and to take it away should require a higher burden of proof (e.g., clear and convincing).

Supreme Court Gives More Protection In Cases That Are “Penal.”

The law is settled through U.S. Supreme Court cases that “penal statutes are to be construed strictly, Commissioner v. Acker, 361.U.S. 87, 80 S. Ct. 144, 4. L. Ed. 2d 127 (1959), Fed’l Comm. Comm’n v. Am. Broadcasting Co., 347 U.S. 284, 296. One “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362. See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410; Elliott v. RR Co., 99 U.S. 573, 576.

Penal statutes must be construed narrowly and are interpreted against the state. Any part or term that is vague will not be enforced or will be stricken. Warren v. State, 16 Fla. L. Week 1346 (Fla. 1991). Accord, Riley v. Georgia, 219 Ga. 345, 133 S.E. 2d 367 (Ga. 1963); State v. Morrison, 25 N.J. Super. 534, 96 A. 2d 723 (Essex Cty. Ct., N.J., 1953); U.S. v. Ortiz, 24 M.J. 164 (CMA 1987), at 168.

Florida Courts Apply Criminal Law Rights and Protections to Cases Involving Administrative Penalties.

The Florida Supreme Court has affirmatively extended the proscription against self-incrimination to any administrative proceeding of a “penal” character. This could be one in which the state seeks revocation or suspension of a license or one in which the state seeks a fine on a licensee. Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any administrative proceeding in which the state seeks to inflict a penalty against the license or the licensee would invoke these rights. An action to revoke a professional license is penal. So, too, is an action which results in the loss of income or a fine.

More to Come.

Be sure to check our blog regularly to learn more on the burden of proof in administrative cases involving discipline of professional licenses. Part two of this blog series will be posted soon.

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 health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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.

Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 2

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will continue to concentrate on those licenses by the state DOH in this blog. Click here to read part one.

Fifth Amendment Protection Against Self-Incrimination Applies.

Because potential license revocation proceedings are penal in nature, a respondent or license holder in such an investigation or administrative hearing has the right to remain silent under the Fifth Amendment of the United States Constitution and under the Florida Constitution.

Otherwise, this would defeat the spirit and intent of the constitutional protections guaranteed by the Fifth and Fourteenth Amendments to the United State Constitution. See, State v. Caballero, 396 So. 2d 1210, 1213 (Fla. 3d DCA 1981) (“A coerced confession offends due process of law.”); Dickerson v. U.S., 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000) (“We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily”); Chambers v. State of Fla., 309 U.S. 227, 228, 60 S. Ct. 472, 473 (1940) (“[U]se by a state of an improperly obtained confession may constitute a denial of due process of law as guaranteed in the Fourteenth Amendment”); and Barnes v. Merrill, 2002 WL 1313123 (D. Me. 2002) (“Involuntary statements are inadmissible under the Fifth Amendment requirement that no person can be compelled to be a witness against himself in a criminal case.”).

For Florida cases on point, see, Chancellor Media Whiteco Outdoor v. Fla. Dep’t of Transport., 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001), substitute opinion entered on rehearing, 795 So. 2d 991, 26 Fla. L. Weekly D1894 (Fla. 5th DCA July 30, 2001). See also, State ex rel. Vining v. Fla. Real Estate Comm’n, 281 So.2d 487, 491 (Fla. 1973); Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993) (“We agree that requiring Kassover to answer . . . questions does violate his right against self-incrimination which applies not only to criminal matters but also administrative proceedings such as licensing”).

Florida Courts Require Higher Standard for Administrative Licensure Cases.

In Florida, the courts have adopted and have required the “clear and convincing” standard to be used in any case involving a professional license, finding that such action by the state is punitive or penal in nature and affects a substantial right of the respondent. The key Florida cases that discuss this are two Florida Supreme Court cases, Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also, Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any case in which a state administrative agency seeks a penalty, a fine or action affecting the status of a professional license, would require the application of a “clear and convincing standard.” An action to revoke a professional license is definitely considered to be penal. So too is an action which results in the loss of income, such as by suspending a license (so there is no professional income), a fine, or an order to refund professional fees. McDonald v. Dep’t of Prof. Reg., Bd. of Pilot Commissioners, 582 So. 2d 660 (1st DCA 1991)

Although these are all Florida cases, if you read them and follow their rationale, they go back to basic constitutional principles of due process of law and the taking away of rights or property without due process.

For example, in one case in which I defended a nursing home’s license, the state had evidence that contradicted itself. There were certain facts at issue and the state put forth two different sets of facts. The state could not prove either set of facts by “clear and convincing evidence.” Therefore, by law, the administrative law judge had to rule in favor of the license holder.

Penal Statutes, Such as Professional Discipline Statutes and Professional Practice Acts Must Be Narrowly Interpreted.

A statute is unconstitutionally void for vagueness if it fails to give a personal of ordinary intelligence fair notice of what conduct is forbidden by the Statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, (1954). Criminal statutes must be written with sufficient specificity so that citizens are given fair warning of the offending conduct, and law enforcement officers are prevented from engaging in arbitrary and erratic enforcement activity. Papachristou; Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).

Florida case law has long upheld this principle of the common law as well. Statutes must be written well enough so as to provide fair notice to ordinary citizens as to their exact meaning. State v. Warren, 558 So. 2d 55 (Fla. 5th DCA 1990), aff’d. Warren v. State 16 Fla., L. Week 28 (Fla. 1991).

When First Notified of a Pending Investigation Seek the Advice of an Experienced Health Law Attorney.

When you receive any notice, by telephone, by mail, by hand delivery or by information passed along by your employer, that an investigation has been opened against your professional license, immediately contact an attorney experienced in such matters. Do not talk to the investigator. Do not talk to the prosecuting attorney. Do not call the state agency and ask for advice on what you should do. Do not send a written statement explaining your side of the story.

You have important constitutional rights that protect you. But you have to exercise the common sense required to use these rights. Part of this is by obtaining competent legal counsel who can advise you and protect your rights. Again, we remind you that unless an attorney routinely handles this type of case, he or she may be unfamiliar with what your rights are in such a situation or how to handle it.

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 health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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.
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By The Health Law Firm|2024-03-14T10:00:43-04:00June 1, 2018|Categories: Administrative law, Licensing issues, The Health Law Firm Blog|Tags: administrative discipline cases, administrative law, administrative licensure case, administrative penalties, burden of proof, civil case, defense attorney, defense lawyer, dentist complaint, Department of Health (DOH), Florida health law attorney, Florida health law lawyer, licensing disciplinary cases, mental health counselor complaint, nurse complaint, penal statues, pharmacist complaint, physician complaint, preponderance of evidence, professional licensing, psychologist complaint, right to practice|Comments Off

Disruptive Physicians: Nobody Likes a Nuisance

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

Identifying and eliminating disruptive physicians has become a paramount concern of many hospitals and healthcare systems. Disruptive physicians hinder the safe and orderly operation of a healthcare facility and are considered a threat to the safety of patients. Disruptive behavior can impact staff morale and can increase the risk of liability to all employers.

A recent New York case demonstrates this. According to a journal for surgeons, a New York doctor is being held responsible for an ongoing worker’s compensation bill as the result of a violent outburst he directed toward a physician assistant (PA). The physician allegedly lost his temper during an open-heart surgery when the physician assistant accidentally suctioned some heart tissue. The physician allegedly threatened that he would “throw the physician assistant through the wall” if it happened again.

The physician assistant has claimed that the threat deeply affected her ability to perform her job, as well as put the patient’s safety at risk. A psychologist diagnosed the PA with post traumatic stress disorder (PTSD) caused by the incident. Unable to work because of the trauma allegedly caused by the disruptive physician, the PA now reportedly collects $2,415 a week in workers’ compensation.

To read the full article from Outpatient Surgery, click here.

Implications of Disruptive Behavior.

Disruptive behavior from a physician can lead to dire consequences for both the physician and his or her employer. Lawsuits and liabilities, such as those in the New York case discussed above, can detract from a safe, cooperative, and professional healthcare environment.

Disruptive behavior can negatively affect the quality of patient care. Hospitals claim that this happens because of conduct that:

– Disrupts or impedes the operations of the hospital;

– Adversely affects the ability of others on the healthcare team to do their jobs;

– Creates an unprofessional or hostile work environment for hospital employees;

– Interferes with coworkers’ ability to practice competently;

– Prevents effective communications among healthcare providers and staff;

– Disrupts the continuity of care a patient receives; and

– Adversely affect the community’s confidence in the hospital’s ability to provide quality patient care.

Being accused of being a disruptive physician may lead to adverse action against clinical privileges, action to drop the physician from insurance panels, consequential action by the state medical board or licensing authority, loss of specialty certification, termination of employment contracts and other various consequences.

What Conduct May Cause One to be Labeled a Disruptive Physician?

A hospital’s creed, ethical statement, or code of conduct, as well as Joint Commission Standards, and medical staff bylaws can define what constitutes disruptive behavior. Case reports, hospital policies and actual cases in which we have defended physicians demonstrate the types of acts that can be used to label a person as “disruptive.” Disruptive behavior includes, but is not limited to:

– Verbal attacks that are personal, irrelevant to hospital operations, or exceed the bounds of professional conduct;

– Shouting, yelling, or the use of profanity;

– Verbally demeaning, rude or insulting conduct, including exhibiting signs of disdain or disgust;

– Inappropriate physical conduct, such as pushing, shoving, grabbing, hitting, making obscene gestures, or throwing objects;

– Inappropriate comments or illustrations made in patient medical records or other official documents, impugning the quality of care in hospital facilities, or attacking particular medical staff members, personnel, or policies;

– Belittling remarks about the patient care provided by the hospital or any healthcare provider in the presence or vicinity of patients or their families;

– Non-constructive criticism that is addressed to the recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence;

– Refusal to accept, or disparaging or disgruntled acceptance of, medical staff assignments;

– Inappropriately noisy or loud behavior in patient areas;

– Making sexual or racial jokes;

– Physically touching another professional, nurse or staff member, especially those of the opposite sex;

– Making sexually suggestive remarks;

– Commenting on another person’s body parts;

– Threatening violence to another;

– Throwing surgical equipment, medical supplies, charts, or anything else at or around anyone else; or

– Other disruptive, abusive, or unprofessional behavior.

I previously wrote a two-part blog series detailing the types of conduct considered disruptive, as well as the consequences associated with disruptive behavior and how you as a physician can avoid such pitfalls. To read part one of the blog series, click here. To read part two of the blog series, click here.

Physicians: Proactively Educate Yourself.

It’s wise to review your hospital’s or institution’s policies on disruptive behavior. Arming yourself with the knowledge necessary to avoid such accusations is imperative in protecting your reputation and career.

No one lives in a glass house, but pretend you do. Someone can always observe your actions in the office or hospital. Once you have been labeled a disruptive physician, others may be closely, at times, scrutinizing you for anything you may do wrong. You will make yourself a target for possible false allegations and accusations. The healthcare industry is a demanding and stressful field. It’s understandable that potential outbursts can occur; control yourself and don’t let them.

Comments?

Have you ever been accused of being a disruptive physician? Have you ever been around one? What are some proactive tactics physicians can take to prevent any outbursts or behavioral conduct that would be deemed as disruptive? Please leave any thoughtful comments below.

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, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, 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.

Source:

Burger, Jim. “Doc Threatens Physician’s Assistant During Open Heart Surgery: I’m Going to Put Your Through the Wall.” Outpatient Surgery. (July 14, 2014). From: http://www.outpatientsurgery.net/surgical-facility-administration/legal-and-regulatory/doc-threatens-physician-s-assistant-during-open-heart-surgery-i-m-going-to-put-you-through-the-wall–07-14-14

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.