Top 5 Reasons Professional Counselors and Psychotherapists Receive Complaints Against Their Licenses;  What to Do to Prevent It

By Michelle E. Missigman, J.D., Attorney, The Health Law Firm

What is a Licensure Complaint?

A licensure complaint against a professional counselor, mental health counselor, or other psychotherapist is usually initiated by the filing of a complaint with the professional board or other regulatory authority.  Although some states authorize the licensing board to investigate and resolve such complaints, in other states, there may be an “umbrella” agency that receives them and investigates them.  For example, in Florida, the Florida Department of Health (or “DOH”) will receive and investigate complaints. In Colorado, the Division of Regulatory Agencies (or “DORA”). In Washington, D.C., the D.C. Department of Health (or “DC Health”), receives and investigates them.
Regardless, you will receive written notification, usually via U.S. mail, that an investigation has been opened against you.  This is a major reason that you must keep your physical address and e-mail address up to date with all states in which you are licensed and with all certification boards at all times.

Regardless, the appropriate government regulatory authority will open and conduct an investigation into whatever complaint is filed.

What to Do When Notified of an Investigation.

If you are notified that you are under investigation, it is crucial that you immediately obtain an experienced healthcare attorney to represent you and that you notify your professional liability insurer about the complaint.  In most cases, your professional liability insurance will include coverage for defense legal fees involved in defending a case against her license.
It is important that you do not speak with an investigator until you consult with an attorney.  The decision on whether or not to make a statement or respond to questions from the investigator will depend on state law and the circumstances of the case. In some states, there is no obligation to cooperate with such an investigation. This is why it is so important to consult with an experienced attorney first.
When the investigation is completed, you may have the right to obtain a copy of the investigation and/or file a rebuttal to it. Again, this will depend on state law. In Florida, you do have such a right and it is usually crucial to do this. In many cases, a detailed, well-documented rebuttal statement may result in a dismissal of the case.
Ultimately, there will be a screening by the licensure board or a committee of the licensure board. It may make a finding that the complaint is meritless or that there is no probable cause to suspect that an actual offense has been committed. This will usually result in a dismissal of the case would no further action is required.

However, if the licensing authority does find the allegations that launched the investigation to be accurate, it may recommend that formal administrative charges be filed and that disciplinary action be undertaken. At this point, you will have the opportunity for a hearing in order to contest the facts and circumstances surrounding the complaint and to show that you are not guilty of any violations.

Who Can Make a Complaint?

A complaint can be filed against a counselor by a current or former client, a member of a client’s family or social circle, a colleague, a present or past employer, a law enforcement authority, a health insurer, the Medicaid Program, or another regulatory agency.  In effect, a complaint can be filed by anyone. In many instances, the licensing authority will be notified by receiving an arrest record or receiving a newspaper report or other media report. However, most complaints are filed by disgruntled patients and competitors of the psychotherapist.

What Are the Top Reasons that Professional Counselors Receive Complaints?

According to a national professional liability insurance company that insures psychotherapists,
the following are the most frequent grounds for licensing board complaints against counselors:
1. Sexual Misconduct,
2. Failure to Maintain Minimal Professional Standards,
3. Breach of Confidentiality,
4. Reporting to Third Parties, and
5. Failure to Practice Within Boundaries of Competence.

Source:  Healthcare Providers Insurance Organization (HPSO) Counselor Liability Claim Report.

How Can I Avoid Receiving Discipline from my Licensing Board?

As the average number of complaints against psychotherapists continues to rise, it is imperative that counselors document their clinical case notes appropriately and keep their client relationships professional at all times.  When the boundaries between counselor and client begin breaking down, it becomes impossible to tell what information the counselor should document and/or keep confidential.
Not having a record of client interaction places the counselor in a difficult position should they receive a board complaint.  Without documentation of the counselor’s decision-making based on what the client did or said, the counselor will have no record to support them during an investigation.  It becomes a case of the counselor’s word against the word of a disgruntled client.  Properly maintaining clinical case notes is not only a crucial part of the counselor’s obligation to their client, but it also serves as crucial supporting evidence during a board investigation.

For more information on how our firm can help defend you and your mental health counselor’s license, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free: (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: Michelle E. Missigman is an attorney at 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, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.


Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.
“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 © 2023 The Health Law Firm. All rights reserved.
By |2023-11-21T13:31:51-05:00November 20, 2023|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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COVID-19 Burn Out Causing More Resident Physicians to Unionize, Part 2

stethoscope and gavel with the word covid-19 written before it
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

This is part two of a blog series focusing on the effects of COVID burnout in healthcare professionals. Don’t forget to read part one.


The Problem With Residents’ Working Conditions Existed Long Before the Pandemic.

It’s common for resident physicians to work long hours for relatively low pay. They have little or no ability to determine their schedule and are generally locked into positions for up to seven years. Certainly, medical residents have voiced concerns about their work lives long before the pandemic. Some describe years of grueling schedules, sometimes with 24-hour shifts, including 80-hour workweeks. “Residents were always working crazy hours, then the stress of the pandemic hit them really hard,” John August, a director at Cornell University’s School of Industrial and Labor Relations, is quoted as having said.

To learn more about issues that affect residents and fellow physicians, click here to visit the American Medical Association (AMA) Resident and Fellow Section.


Benefits & Drawbacks of Unionizing.

Medical residents looking to unionize often cite such basics as pay and working conditions as top reasons. For reference, first-year residents earned just under $60,000 on average in 2021, according to a survey done by AAMC.  At 80 hours a week, one could calculate that residents could very well be earning less than the minimum wage, according to the AAMC data.

Those unionizing typically say wages are too low, especially given residents’ workload, student loan debt, and the rising cost of living.

Additionally, some residents say that unions can have upsides for hospitals and can also help enhance patient care. Patients deserve physicians who aren’t exhausted and preoccupied with the stress of finances. “To take good care of others, we need to be able to care for ourselves. We love being residents and caring for patients. But we can’t do that well if we neglect ourselves,” said a University of Vermont Medical Center resident.

On the other hand, residents unionizing is not without its potential drawbacks. For hospitals, money is an issue. Although federal funding helps pay residents’ salaries, most training expenses come from hospitals. In many instances, because of the pandemic, those funds are now depleted, said Janis Orlowski, MD, AAMC chief health care officer.

Some worry that unionizing can undermine the connections between residents and the physicians who train them. Another primary concern for hospitals is the threat of a strike; although rare, it has been decades since the last one. Many residents also worry that unionizing could undermine patients’ and communities’ trust in them.

Happy Residents, Happy Patients.

For some healthcare workers, the COVID-19 pandemic solidified the importance of a union. Residents have been on the front lines of care but were not alwaysmedical residents giving a thumbs up with arms up in the air the first to access PPE or lifesaving vaccines. Others are simply looking for acknowledgment of the sacrifices they’ve made while caring for the country’s most vulnerable patients.

However, one thing remains clear; both sides agree that the goal is to become a good physician and get taken care of in the process.

For more information on residency programs, click here to watch one of our video blogs, and make sure to check out our YouTube page.


Contact Experienced Health Law Attorneys Representing Residents, Fellows, and Medical Students.

The Health Law Firm routinely represents resident physicians, fellows and students, including medical students, dental students, nursing students, pharmacy students, and other healthcare professional students, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law 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 Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Weiner, Stacey. “Thousands of medical residents are unionizing. Here’s what that means for doctors, hospitals, and the patients they serve.” AAMC News. (June 7, 2022). Web.

Kwon, Sarah. “Burned out by COVID and 80-hour workweeks, resident physicians unionize.” Kaiser Health News. (May 27, 2022). Web.

Murphy, Brenden. “Why more resident physicians are looking to unionize.” AMA. (June 28, 2022). Web.

Author HeadshotAbout the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with 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 Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 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 © 2022 The Health Law Firm. All rights reserved.

By |2023-11-09T19:00:04-05:00November 11, 2023|Categories: Health care Law, Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Iowa Appellate Court Reverses $6 Million Nursing Home Negligence Decision Because of Hearsay Testimony

Author HeadshotBy George F. Indest III, J.D., M.P.A, LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm
On June 21, 2023, the Iowa Court of Appeals overturned the verdict in a nursing home negligence case that awarded $6 million in compensation and damages to the plaintiff. The case was reversed and remanded for a new trial because the trial court judge admitted inadmissible hearsay testimony into evidence. The testimony being appealed was that of staff members who claimed to have heard “reports” and “rumors” of alleged abuse by a nurse on staff toward not only the resident in question but other residents.
Hearsay in Iowa law is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Click here to read the Iowa Rules of Evidence concerning hearsay. This is the same definition used by the federal and most other courts.
Essentially, hearsay is when someone repeats something they heard from another person and presents it as if they know it to be true. Hearsay is often equated to rumor. Hearsay is not admissible due to the nature of speculation required in making such a statement, the fact that such statements are inherently unreliable and that the actual witness is not in court to answer questions about it. Thus there is no way for a party or the judge to test the credibility of the actual witness or determine facts that may have influenced the observation and statement.
Hearsay is considered unreliable because the person who knows what happened (who saw what happened or heard what happened) is not to be questioned about it. Therefore, there is no way to know what really happened for sure.
Details of the Case. 
In this case, the estate of the former nursing home resident, who succumbed to her injuries after a fall in the nursing home, claimed adult abuse and that negligence caused a wrongful death. In its defense, the nursing home focused on the alleged abuse by a nurse on the staff. The statements challenged in the appeal included testimony made by six nursing home staff members that residents, other unnamed employees, and an Iowa Department of Inspections and Appeals surveyor told them that the nurse in question had been physically rough with and swore at residents.
The employees testifying did not actually witness any such incidents. They were only testifying about someone else’s words (“hearsay”). 
The trial court admitted these statements, allegedly not for their truth, but in an attempt to show that abuse had been reported and there had not been any follow-up investigation. The appellate court stated that this was not a valid reason to admit inadmissible hearsay into evidence because the estate must prove that the conduct existed to prevent the jury from engaging in rampant speculation based on unreliable hearsay evidence.
People in today’s society, yes, even judges, often forget this basic principle of law. With all of the fabricated lies being put out as “news” on some news channels, Internet rumors running rampant, and politicians making egregiously false statements, it’s often hard to remember how to distinguish a fact from an unreliable rumor or hearsay.
This is one of the problems with hearsay. It is often just gossip and rumor, which change from person to person. Especially egregious conduct, criminal activity, and salacious acts become increasingly exaggerated with each retelling. The founding fathers in English and American law realized the inherently unreliable nature of such “evidence.”
Under the hearsay rule, the Court of Appeals agreed with the nursing home that the statements being challenged were inadmissible hearsay evidence that influenced the jury’s verdict. Due to this, the court reversed the verdict and remanded the case for a new trial. To read the court’s opinion in full, click here.
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents health professionals and health facilities in civil and administrative litigation. We also represent physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, board hearings, 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.  We represent medical students, interns, resident physicians, and fellows in disputes with their graduate medical education (GME) programs.  We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters, and other disputes with their employers.  We often act as the physician’s personal counsel in medical malpractice litigation.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Source: 
About the Authors: 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. Hartley Brooks is a law clerk with the health law firm. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.
“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 © 2023 The Health Law Firm. All rights reserved.
By |2023-07-31T13:50:17-04:00October 27, 2023|Categories: Pharmacy Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Medications and Other Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests (Part 1 of a Blog Series)

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In representing nurses and other licensed health professionals, we constantly discuss positive drug screenings, usually from employer-ordered drug testing, with our clients.  These clients include nurses, pharmacists, dental professionals, mental health counselors, therapists, etc.  Often these individuals need to remember that if they apply for a job with a new employer or are working for a large corporation or the government, they are subject to employer-ordered drug screenings.  Most problems arise when the professional has applied to a hospital or a placement agency for work in a hospital and they must submit to a pre-employment drug test.
The client often contends that the result is a false positive and that some other substance must be responsible for it.

A positive result for any drug for which you do not have a valid prescription from a physician, including marijuana, will cause you to be eliminated from consideration for a new job or terminated from a current position and a complaint against your professional license, which could cause you to lose it.  We are routinely called on to defend such situations.

Series of Blogs to Discuss Substances that Can Mimic Prohibited Drugs on Drug Tests.

In the years I have been doing this, I have encountered many cases in which other substances have caused a positive result for a prohibited substance on a drug screening test.

In this series of blogs, I intend to discuss some of the substances scientifically shown to cause false positives on employer-ordered drug screening tests.  This is the first in the series.

Over-the-Counter Medications Mimicking Amphetamines on Drug Tests.

Following is a discussion of substances that can cause a false positive for amphetamines on a urinalysis drug test.  This material comes from an article in Case Reports in Psychiatry published in 2013. (Ref. 1)
Many prescription pharmaceuticals and over-the-counter (OTC) medications have been previously reported in the literature to cause a false-positive result for amphetamines on urine drug screens. Many OTC medications have been reported in scientific literature to produce false positives for amphetamines on urine drug screenings, chiefly antihistamines.

The OTC medications that have been documented to and are well known as causing false positives for amphetamines on drug tests include nasal decongestants, Vicks inhaler, MDMA (3,4-Methylenedioxy methamphetamine;  commonly known as ecstacy, molly, mandy or X), and pseudoephedrine.  (Refs. 1-5)  Some of these are prohibited medications that cannot be prescribed and are only available as “street drugs” such as MDMA.

Prescription Medications Documented as Mimicking Amphetamines.

Prescription medications known to have mimicked amphetamines on testing include antipsychotics and antidepressants.  (Refs. 1 & 2)
The prescription medications known to cause false-positive amphetamine urine drug screen include fluoxetine, selegiline, ranitidine, trazodone, nefazodone, brompheniramine, phenylpropanolamine, chlorpromazine, promethazine, ephedrine, methamphetamine, and labetalol.  (Refs. 2-5)  However, the fact that the individual taking the drug test might have a prescription for one of these might cause the employer to disqualify the employee or potential employee from consideration for the job.
Bupropion (an atypical antidepressant that inhibits norepinephrine and dopamine re-uptake), is a drug used to treat depression and smoking cessation, but may also be used off-label to treat ADHD.  It has also been documented as causing false positive results for amphetamines on drug screenings.  (Ref. 6)
The drug atomoxetine has metabolites that are similar to those of amphetamines (phenylpropan-1-amine verses phenyl-propan-2-amine).  This could also result in a false positive on a urine drug screen.  (Ref. 1)

 

Other Discussions in Future Blogs.

In future blogs, I intend to discuss false positive claims associated with use of ibuprofen, amoxicillin, coca leaf tea, poppy seeds and other common substances and medications.  Stay tuned.

Contact Experienced Health Law Attorneys in Matters Involving PRN or IPN.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses and other health professionals in matters involving PRN or IPN. Our attorneys also represent health providers in Department of Health investigations, before professional boards, in licensing matters, and in administrative hearings.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

References:

1. Fenderson JL, Stratton AN, Domingo JS, Matthews GO, Tan CD. Amphetamine positive urine toxicology screen secondary to atomoxetine. Case Rep Psychiatry. 2013;2013:381261. doi: 10.1155/2013/381261. Epub 2013 Jan 30. PMID: 23424703; PMCID: PMC3570929.
(Accessed on May 20, 2023.)
2. Brahm NC, Yeager LL, Fox MD, Farmer KC, Palmer TA. Commonly prescribed medications and potential false-positive urine drug screens. Am J Health Syst Pharm. 2010 Aug 15;67(16):1344-50. doi: 10.2146/ajhp090477. PMID: 20689123.
3. Vincent EC, Zebelman A, Goodwin C, Stephens MM. Clinical inquiries. What common substances can cause false positives on urine screens for drugs of abuse? J Fam Pract. 2006 Oct;55(10):893-4, 897. PMID: 17014756.
4. Rapuri SB, Ramaswamy S, Madaan V, Rasimas JJ, Krahn LE. ‘Weed’ out false-positive urine drug screens. Current Psychiatry. 2006;5(8):107–110. [Google Scholar]
5. Moeller KE, Lee KC, Kissack JC. Urine drug screening: practical guide for clinicians. Mayo Clin Proc. 2008 Jan;83(1):66-76. doi: 10.4065/83.1.66. Erratum in: Mayo Clin Proc. 2008 Jul;83(7):851. PMID: 18174009.
6. Reidy L, Walls HC, Steele BW. Crossreactivity of bupropion metabolite with enzyme-linked immunosorbent assays designed to detect amphetamine in urine. Ther Drug Monit. 2011 Jun;33(3):366-8. doi: 10.1097/FTD.0b013e3182126d08. PMID: 21436763.

 

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. Suite 1000, Altamonte Springs, FL 32714, Phone:  (407) 331-6620 Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm.  The Health Law Firm always seeks qualified individuals interested in health law.  Its main office is in the Orlando, Florida, area.  If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: PAlexander@TheHealthLawFirm.com or fax them to (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.
By |2023-05-23T13:24:18-04:00October 23, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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16 Tips For Health Professionals to Avoid Sexual Harassment Complaints & Allegations

Author Headshot

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

Throughout my decades of representing health care professionals, I have seen cases where an economic competitor of a physician generated false sexual harassment complaints to eliminate competition. I have seen cases where an ex-employee invented false allegations of sexual harassment after that employee was caught embezzling money from the employer. There have been cases where administrative and nursing staff have conspired to create complaints against a demanding and unpopular physician in a hospital setting. Therefore, I am never surprised when a physician claims they are the subject of a fabricated sexual harassment complaint and contacts me seeking a consultation.

As a result, I have come up with a list of tips that any individual health professional should follow to avoid such complaints and allegations.

Below are helpful tips that all medical professionals should know to avoid sexual harassment complaints or allegations:

1. Avoid all office and workplace romances.

2. Do not touch others, especially those of the opposite sex.

3. Never even consider having a romantic relationship with a patient.

4. Do not tell off-color or sexually suggestive jokes.

5. Do not compliment a worker, staff, or colleague of the opposite sex on their appearance, clothes, etc. This is a good rule to follow, even if the other person is of the same sex.

6. If your remarks or conduct is perceived as inappropriate by a staff member, or they say this, apologize immediately and assure them this was not intended and will never happen again. Then document the incident with a note to your own file or a memorandum to yourself. Consider reporting the incident your group’s administrator or office manager.

7. Do not socialize inappropriately with anyone who may be considered your subordinate or over whom you have perceived authority, especially where alcohol is involved. The exception is for sanctioned, official group functions.

8. Do not socialize with patients.

9. Do not use obscene language in the workplace, in front of other staff, employees, or patients.

10. If anyone alleges you acted inappropriately, report it to the group’s administrator immediately.

11. If a patient makes a sexually suggestive remark or asks you out, arrange to have that patient transferred to the care of a different health professional, immediately.

12. Know that plaintiff’s attorneys in sexual harassment and discrimination cases advise their clients to keep detailed notes and diaries concerning their contacts with a perceived abuser or harasser.

13. If a complaint is filed against you, report it immediately (to both the group administrator and your insurer) and retain an attorney to represent you regarding it. It could result in a lawsuit, a Board of Medicine complaint, termination of employment, peer review proceedings to revoke your clinical privileges or other actions.

14. Be familiar with your medical group’s and the hospital’s policies and procedures on sexual harassment, disruptive behavior, and reporting incidents. Follow it.

15. Act professionally when in contact with patients, staff, or colleagues.

16. Know that investigators and plaintiff’s attorneys in sexual harassment and discrimination cases often advise the alleged victim to contact the perpetrator by telephone and attempt to obtain incriminating statements. If a tape recording of the conversation is made by law enforcement officials, it will probably be admissible in proceedings against the alleged perpetrator. Never discuss any inappropriate activity over the telephone.

To learn more about the severe repercussions of such allegations, read my blog, where I discuss sex discrimination complaints against the University Of Southern California Medical School.

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, dentists, nurses, resident physicians, mental health counselors, social workers, pharmacists, and health facilities. Our legal representation also includes medical students, medical school professors, and clinical staff. We represent health facilities, individuals, groups, and institutions in investigations, 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 and other healthg professionals accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 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 © 2022 The Health Law Firm. All rights reserved.

 

 

By |2023-10-20T20:02:29-04:00October 22, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , |0 Comments
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COVID-19 Burn Out Causing More Resident Physicians to Unionize, Part 1

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

This is part one in a blog series focusing on the effects of COVID burnout in healthcare professionals. Be sure to check back for part two.

As you know, residents are new physicians who have recently finished medical school and are spending three to seven years obtaining additional training in a medical specialty. Almost all hospitals practice independently; after all, they are doctors already. And in nearly all hospitals where resident physicians practice, they represent the front line of medical care. On duty all the time, on-call all the time, they are usually the first medical professional to see a new patient who can make a diagnosis and order tests or medications. In addition, resident physicians are generally the first to examine, diagnose, and treat a patient.

In most hospitals, in the past, residents were treated almost as indentured servants, required to work long hours without sleep, pull back-to-back shifts, and remain on call for extensive periods. This was considered a right of passage for resident physicians; a “baptism of fire.” If they couldn’t hack it, they did not deserve to be a physician in the specialty.

More than 80 Hours per Week-a Routine Occurrence.

However, recently (let’s say in the last decade or so), it has been recognized that overworked health professionals cannot provide optimum, safe patient care. This led such organizations as the Accreditation Council for Graduate Medical Education (ACGME), which accredits residency programs in the U.S., to require that such programs and hospitals that residents work in must limit the resident physician’s work hours to no more than 80 (yes, 80) hours per week. It got so bad that at least one state, New York, passed a law stating that it was illegal for resident physicians to work more than 80 hours per week.

However, even before the COVID-19 pandemic, there were hospitals and residency programs that would require their residents to work more than 80 hours a week and to turn in false time sheets showing they had worked fewer. We have had many reports that such programs even meet with their residents before an ACGME inspection (or survey) and tell them they must lie to the investigators (or surveyors) and falsely state they did not work more than 80 hours.

COVID-19 Comes on the Scene.

However, in a real crisis like the COVID-19 pandemic, where patients are coming into hospitals dying right and left, it must be acknowledged that resident physicians and other hospital staff will be working above and beyond the maximum, no matter what. The long hours, the lack of relief, the stress of losing patients, and the stress of exposure to a potentially deadly disease have taken their toll on many resident physicians. Those who have contracted the virus and had to rush their recovery and recuperation to get back to work have, perhaps, suffered the most.

Residents Banding Together to Unionize.

Many resident physicians are now banding together to demand higher wages, better benefits, and working conditions due mainly to the “burnout” they experienced during the COVID-19 pandemic. They join nurses, medical assistants, and other health care workers who are unionizing and threatening to strike. In addition, staffing shortages, the rising cost of living, and the lack of personal protective equipment (PPE) and COVID vaccines have pushed them to their limits.

In some places, New York being a familiar example, resident physicians already had unions representing them in many areas. Now, this is expanding.

Check back soon to read part two of this blog series.

Contact Experienced Health Law Attorneys Representing Residents, Fellows, and Medical Students.

The Health Law Firm routinely represents resident physicians, fellows, and students, including medical students, dental students, nursing students, pharmacy students, and other healthcare professional students, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s attorneys include those board-certified by The Florida Bar in Health Law and licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Weiner, Stacey. “Thousands of medical residents are unionizing. Here’s what that means for doctors, hospitals, and the patients they serve.” AAMC News. (June 7, 2022). Web.

Kwon, Sarah. “Burned out by COVID and 80-hour workweeks, resident physicians unionize.” Kaiser Health News. (May 27, 2022). Web.

Murphy, Brenden. “Why more resident physicians are looking to unionize.” AMA. (June 28, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law, is an attorney with 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 Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 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 © 2022 The Health Law Firm. All rights reserved.

By |2023-10-12T20:00:01-04:00October 14, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Harvard Med School Morgue Director Allegedly Sold Body Parts, Class Action Says

Author headshot standing in dark suit with red tie against a dark grey backgroundBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a morbid but extremely popular class action lawsuit filed on June 16, 2023, illegal body parts sales was alleged. The lawsuit against Harvard University contained allegations that its morgue manager was selling body parts from 350-400 donated cadavers. Many donors have now requested their bodies back.

Family members of the deceased had voluntarily donated the cadavers to the prestigious institution to further the medical and scientific study of the human body.

Massachusetts state law recognizes that human beings are entitled to be treated with decency and digital after death, which includes the bodies not being mishandled, viewed, dismembered, or sold by those entrusted with them. The previous morgue manager allegedly violated this law and countless other state, federal, and international laws and treaties. State and federal law prohibits the sale of body parts, often referred to as anatomical donations. These laws have been derived from international laws and conventions that prohibit such conduct, mostly written and agreed to as a result of the Nazi atrocities of World War II.

The Class Action Lawsuit.

The manager allegedly allowed unauthorized third-party members to view the cadavers in the morgue and select which body parts they wanted to purchase. The lawsuit did not state what times and days the store was open. However, once the order was placed, the morgue manager would unlawfully dissect and sell the body parts in person and online. Additionally, the defendant would allegedly ship the body parts to various locations in the United States on demand. Officials believe that this scheme occurred from at least 2018 until March 2023. During that time, the entrepreneurial morgue manager is suspected of having done his dastardly deeds to 350 to 400 separate cadavers.

The lawsuit did not reveal what the purchasers used the body parts for. However, this is expected to come out in discovery.

The class action lawsuit claims negligence and breach of care for the morgue manager and Harvard. According to the suit, the class is defined as: “all individuals whose family members donated their bodies to Harvard and Harvard Medical School for medical research and academic study and whose cadavers were mishandled, dissected, and/or sold by the morgue manager.”

The suit claims that Harvard breached its fiduciary duty of care by allowing the cadavers to be mishandled, dissected, and sold. The negligence claim focuses on the university not taking reasonable steps to ensure that the cadavers were appropriately handled, maintained, and used for their intended purposes. The class claims that Harvard is liable for its employee’s actions because the morgue manager acted within his scope of duty when he unlawfully dissected and sold body parts from the cadavers in the medical school’s onsite morgue.

This argument made in the lawsuit seems somewhat internally inconsistent. It does not seem logical that it could have possibly been within the morgue manager’s scope of duty to act illegally. One cannot have a contract that has for its purpose carrying out an illegal act. Otherwise, I would like to see a copy of that job description (it obviously would not have been written by a Harvard lawyer)!

Massachusetts law imposes a statutory duty to preserve the rights and dignity of a deceased person’s body when a medical school takes custody for scientific and academic purposes, which is another basis for the negligence claims by the class. The plaintiffs are also claiming negligent infliction of emotional distress from both Harvard and the morgue manager since Massachusetts recognizes emotional distress in situations of knowing that the remains of a deceased family member have not been preserved as the family desired.

Harvard will undoubtedly defend itself by arguing that the acts of the errant morgue manager were intentional torts and illegal acts outside of his scope of duties. The doctrine of caveat emptor, by which an employer is held vicariously liable of the negligent acts of its employee, does not apply to intentional torts.

The plaintiffs are requesting a decision from the court stating that both Harvard and the morgue manager are liable for negligence, that the class is awarded damages for the emotional distress, and that the defendants are enjoined from continuing their unlawful practices.

Click here to visit our website and read the complaint in full (but don’t expect to be able to fall asleep after you do!)

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

The Health Law Firm provides legal services for all healthcare providers and professionals. This includes scientists, pathologists, morgue directors (technically not usually licensed health professionals), clinical professors, medical researchers, clinical investigators, physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, fellows, medical school professors, and clinical staff. Our representation includes the defense of complex medical litigation. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex health litigation and both formal and informal administrative hearings. We also represent professionals accused of wrongdoing, patient complaints, and in audits and investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Dowling, Brian. “Harvard Sued Over Morgue Director’s Alleged Body Part Sales.” Law360. (June 16, 2023). Web.

Levenson, Michael. “Harvard Medical School Morgue Manager Sold Body Parts, U.S. Says.” The New York Times. (June 14, 2023). Web.

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 Avenue, Suite 1000, Altamonte Springs, FL 32714. Phone: (407) 331-6620; Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: KBrant@TheHealthLawFirm.com or fax them to (407) 331-3030.

“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 © 2023 The Health Law Firm. All rights reserved.

By |2023-06-26T12:23:11-04:00October 4, 2023|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , |0 Comments
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United States Court of Appeals Denies U.S. Nursing Corporations Indemnification Challenge Against Nurse Staffing Agency

Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law, and Hartley Brooks, Law Clerk, The Health Law Firm
On May 18, 2023, the United States Court of Appeals for the Sixth Circuit affirmed a U.S. district court’s decision to deny U.S. Nursing Corporation a new trial. The appellate court stated that the opposing counsel’s closing argument and the erroneous preclusion of evidence had no substantial effect on the trial’s outcome; thus, there was no reversible error.
The First Lawsuit.
The original lawsuit filed in state court concerned a patient suing Appalachian Regional Healthcare, Inc., for exacerbating his spinal injury. He claimed that a nurse transported him from a car into the emergency room without first stabilizing and immobilizing him, which caused further damage. When the incident occurred, the nurses on staff were two employees of Appalachian Regional and one supplied by U.S. Nursing Corporation to the hospital.
 The court granted a motion that dismissed the Appalachian Regional nurses as defendants because no evidence in the record alleged that they moved the patient. As the trial neared, the court granted another motion prohibiting the parties from introducing evidence that the Appalachian Regional nurses moved the patient from the truck into the emergency room.
This earlier state court lawsuit concluded with Appalachian Regional Healthcare paying $2 million in settlement and incurring $823,522.71 in legal fees.
It is important to note that when U.S. Nursing supplied its nurse to Appalachian Regional, they entered into an agreement that stated U.S. Nursing would indemnify and defend Appalachian Regional for the negligence of any of its employees assigned to Appalachian Regional. The settlement was reached, Appalachian Regional Healthcare demanded that U.S. Nursing indemnify it, but the staffing company refused to do so. In response, Appalachian Regional Healthcare, Inc., sued U.S. Nursing for the $2,823,522.71 state court settlement it paid.
The First Appeal.
In its first appeal, U.S. Nursing argued that the opposing counsel made an inappropriate closing statement when they stated no evidence showed the Appalachian Regional Healthcare nurses moving the patient and that U.S. Nursing had not argued that such evidence existed. U.S. Nursing claimed this statement was inappropriate because it was prohibited from admitting evidence that showed Appalachian Regional Healthcare nurses having moved the patient. The appellate court decided that U.S. Nursing did not have a full and fair opportunity to litigate the issue, so the appellate court remanded to the district court to determine if the error required a new trial.
The nurse staffing company argued that it was incorrectly prohibited from introducing evidence regarding the other nurses on duty and the possibility that they could have been the ones to move the patient. U.S. Nursing also argued that the opposing counsel exploited the court’s error in their closing statements, though the district court never addressed this claim. However, the appellate court asserted that the evidence excluded would not have caused a different outcome at trial, so no new trial was granted.
The Second Appeal.
In its second appeal, U.S. Nursing argued that the district court abused its discretion when it determined the evidentiary error did not affect the trial. The Sixth Circuit Court of Appeals found that the excluded evidence did very little to support U.S. Nursing’s argument, and excluding this evidence did not affect U.S. Nursing’s substantial rights. However, the court stated that the opposing counsel misled the jury with their statements. The remarks did not constitute an error significant enough to warrant a new trial since Appalachian Regional Healthcare, Inc., was highly likely to prevail, despite counsel’s comments.
Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.
The Health Law Firm’s attorneys routinely represent nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings.
To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Source:
About the Authors: 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620; Toll-Free (888) 331-6620
Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: Kbrant@TheHealthLawFirm.com or fax them to (407) 331-3030.
“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 © 2023 George F. Indest III. All rights reserved.
By |2023-08-01T12:01:40-04:00October 4, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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How to Find a Lawyer Who Accepts HPSO Insurance to Defend Healthcare Providers

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

Healthcare professionals such as pharmacists, licensed mental health counselors, advanced registered nurse practitioners (ARNPs), and massage therapists often struggle to find experienced lawyers in Florida who will accept their professional liability insurance after receiving complaints from the Department of Health (DOH). Specifically, in this blog, the insurance provider in question is Healthcare Providers Service Organization (HPSO) Insurance.

Advantages of Having HPSO Insurance.

The medical professionals HPSO Insurance covers can give a sigh of relief knowing they have excellent insurance coverage. HPSO Insurance provides professional liability coverage that protects them in the event of a lawsuit or negligence claim.

However, it’s not just the significant cases that HPSO covers. More often than not, healthcare professionals receive a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment or sexual impropriety, a complaint because of a breach of medical records confidentiality, or a Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action. These situations can be incredibly stressful and time-consuming, but HPSO provides excellent coverage.

For example, if the individual receives a subpoena for a deposition, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation at the deposition. This means that the professional can focus on their work and not worry about the legal costs of a deposition. Additionally, the provider receives a notice of investigation or complaint from the DOH or Agency for Health Care Administration (AHCA). HPSO currently reimburses up to $25,000 in legal fees and expenses for their defense. The peace of mind that comes with knowing that they have this kind of coverage can be invaluable.

Finally, suppose a health professional is facing a complaint or investigation regarding a breach of medical confidentiality. In that case, HPSO reimburses up to $25,000 in legal fees and expenses for their legal representation in defense.

Whether you’re a nurse, physician, psychologist, or other healthcare professional, knowledgeable and skilled attorneys can assist you with legal issues.

Free Legal Advice: Get Insurance Right Away.

As a healthcare professional, it is essential to understand the importance of carrying insurance that covers any investigation, complaint, or administrative hearing that may be filed or opened against your license. Many healthcare professionals mistakenly believe their employer will cover them in such situations, but this is not always true.

Suppose you are still determining whether your employer will provide legal defense for any matters arising during employment. In that case, asking for a written statement confirming this is crucial. Without such a statement, you may find yourself without any legal support in the event of a complaint or investigation.

Unfortunately, in many cases, the employer terminates an employee and then files a complaint with the Department of Health (DOH). This can result in the DOH opening an investigation against the healthcare professional, leaving them vulnerable to potential legal action. In such cases, the employer is unlikely to pay for the healthcare professional’s legal defense costs, leaving the professional in a difficult position.

If you find yourself in this situation, you may be out of work, out of money, and facing an investigation and complaint that could result in your professional license and career termination. Taking proactive steps to protect yourself and your career is essential by investing in insurance that covers legal defense costs.

HPSO Insurance is both inexpensive and reliable. By purchasing this insurance, while you can afford it, you can rest assured that you will have the legal support you need in case of a complaint or investigation.

We Recommend That You Seek the Services of an Experienced Attorney in the Event of Any Notice of an Investigation.

If you work in the healthcare industry, you must be aware of the potential legal issues that could arise. One such issue is disciplinary action or licensure investigations. If you find yourself in this situation, seeking an experienced health law attorney is crucial. Don’t speak with investigators or provide documents or statements without seeking legal advice.

It’s important to remember that investigators and other professionals involved in the investigation are not on your side. They are looking for evidence against you, so don’t take any advice from them. Instead, rely on the guidance of a skilled attorney who can protect your rights and interests.

Another important consideration is insurance coverage. If you have good insurance, it can help cover the costs of legal expenses from the outset. However, not all insurance policies cover disciplinary complaints and licensure investigations. Be sure to check your policy carefully and ensure this type of coverage is included. If not, consider purchasing a separate policy that provides this coverage. It may cost extra, but it’s worth protecting yourself in case of a legal issue. It is worth it!  Please do it!

Contact Experienced Health Law Attorneys Who Represent Healthcare Professionals and Providers.

Our firm specializes in providing legal representation to a wide range of healthcare professionals, including pharmacists, massage therapists, mental health counselors, registered nurses, and more. We offer a variety of services, such as representing clients before their professional board, handling DOH investigations, conducting administrative hearings, defending against malpractice claims, assisting with professional licensing matters, and addressing allegations related to HIPAA privacy violations and medical record breaches.

We also handle DEA actions and other legal matters. Our team frequently defends physicians, dentists, nurse practitioners, and others against malpractice claims, civil lawsuits, administrative complaints, peer review actions, and audits by Medicare and Medicaid. If a healthcare professional has liability insurance that covers these types of claims, we will work to obtain coverage and seek reimbursement for legal fees. In some cases, we may accept an assignment of insurance policy proceeds to directly submit our bills to the insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 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 Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.

“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 © 2023 George F. Indest III. All rights reserved.

By |2023-09-11T13:10:31-04:00October 2, 2023|Categories: Pharmacy Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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Iowa Appellate Court Reverses $6 Million Nursing Home Negligence Decision Because of Hearsay Testimony

Author HeadshotBy George F. Indest III, J.D., M.P.A, LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm
On June 21, 2023, the Iowa Court of Appeals overturned the verdict in a nursing home negligence case that awarded $6 million in compensation and damages to the plaintiff. The case was reversed and remanded for a new trial because the trial court judge admitted inadmissible hearsay testimony into evidence. The testimony being appealed was that of staff members who claimed to have heard “reports” and “rumors” of alleged abuse by a nurse on staff toward not only the resident in question but other residents.
Hearsay in Iowa law is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Click here to read the Iowa Rules of Evidence concerning hearsay. This is the same definition used by the federal and most other courts.
Essentially, hearsay is when someone repeats something they heard from another person and presents it as if they know it to be true. Hearsay is often equated to rumor. Hearsay is not admissible due to the nature of speculation required in making such a statement, the fact that such statements are inherently unreliable and that the actual witness is not in court to answer questions about it. Thus there is no way for a party or the judge to test the credibility of the actual witness or determine facts that may have influenced the observation and statement.
Hearsay is considered unreliable because the person who knows what happened (who saw what happened or heard what happened) is not to be questioned about it. Therefore, there is no way to know what really happened for sure.
Details of the Case. 
In this case, the estate of the former nursing home resident, who succumbed to her injuries after a fall in the nursing home, claimed adult abuse and that negligence caused a wrongful death. In its defense, the nursing home focused on the alleged abuse by a nurse on the staff. The statements challenged in the appeal included testimony made by six nursing home staff members that residents, other unnamed employees, and an Iowa Department of Inspections and Appeals surveyor told them that the nurse in question had been physically rough with and swore at residents.
The employees testifying did not actually witness any such incidents. They were only testifying about someone else’s words (“hearsay”). 
The trial court admitted these statements, allegedly not for their truth, but in an attempt to show that abuse had been reported and there had not been any follow-up investigation. The appellate court stated that this was not a valid reason to admit inadmissible hearsay into evidence because the estate must prove that the conduct existed to prevent the jury from engaging in rampant speculation based on unreliable hearsay evidence.
People in today’s society, yes, even judges, often forget this basic principle of law. With all of the fabricated lies being put out as “news” on some news channels, Internet rumors running rampant, and politicians making egregiously false statements, it’s often hard to remember how to distinguish a fact from an unreliable rumor or hearsay.
This is one of the problems with hearsay. It is often just gossip and rumor, which change from person to person. Especially egregious conduct, criminal activity, and salacious acts become increasingly exaggerated with each retelling. The founding fathers in English and American law realized the inherently unreliable nature of such “evidence.”
Under the hearsay rule, the Court of Appeals agreed with the nursing home that the statements being challenged were inadmissible hearsay evidence that influenced the jury’s verdict. Due to this, the court reversed the verdict and remanded the case for a new trial. To read the court’s opinion in full, click here.
Contact Experienced Health Law Attorneys.
The Health Law Firm routinely represents health professionals and health facilities in civil and administrative litigation. We also represent physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, board hearings, 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.  We represent medical students, interns, resident physicians, and fellows in disputes with their graduate medical education (GME) programs.  We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters, and other disputes with their employers.  We often act as the physician’s personal counsel in medical malpractice litigation.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Source: 
About the Authors: 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. Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.
“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 © 2023 The Health Law Firm. All rights reserved.
By |2023-07-31T13:48:35-04:00September 28, 2023|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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“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 © 2022 The Health Law Firm. All rights reserved.
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