Florida Court Outlines Requirements for Emergency Suspension Orders

Wednesday, June 19, 2013
By Catherine T. Hollis, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In the November 2012, decision in Nath v. Department of Health, the Florida First District Court of Appeal analyzed an emergency suspension order (ESO) issued by the Florida Department of Health (DOH). The Court had to determine whether an ESO served on an acupuncturist accused of inappropriate behavior was sufficient and proper under Section 120.60(6), Florida Statutes.

Emergency suspension orders can have a devastating effect on a licensed health professional because he or she is unable to practice at all in the state until the order is lifted. Often this has the unfortunate effect of forcing the suspended health professional to take a settlement agreement, pleading guilty to charges when they are actually innocent.


DOH Issued Emergency Suspension Prohibiting All Practice.


In the Nath case, the DOH alleged that an acupuncturist engaged in inappropriate, non-consensual sexual conduct with two female patients during treatment sessions.  Such conduct violates Sections 456.072(1)(v), 457.109(1)(j) and 457.109(1)(p), Florida Statutes.  The acupuncturist's license was immediately suspended, pending full administrative disciplinary proceedings.  The acupuncturist filed a petition for review, asking the Court of appeal to review and quash the ESO.


The Court's Analysis of the ESO.

The Court discussed emergency disciplinary action as authorized by Section 120.60(6), Florida Statutes, and cited prior cases that require the allegations in an ESO to state an immediate serious danger, as well "(1) the complained conduct is likely to continue, (2) the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair."

In reviewing the ESO against the acupuncturist, the Court found that the DOH's factual findings sufficiently demonstrated immediate harm to the public health, safety or welfare, and that the conduct alleged was likely to recur.  However, the Court opined that the ESO was not "narrowly tailored" as required, stating that it did not sufficiently explain why an outright suspension was the only way to protect current and potential patients.  The Court recommended a less severe restriction, such as temporarily limiting him to seeing only male patients.  The case was remanded to the DOH for further proceedings in accordance with the Court's opinion.


Settlement Agreement and Narrowed Restriction on Practice.

In December 2012, the acupuncturist and the DOH later entered into a Settlement Agreement which, among other things, restricts his practice in that he may not examine or treat female patients without the presence of a Florida licensed female health care provider who will maintain a log of said patients.  The DOH accepted that Settlement Agreement by Final Order dated March 6, 2013.  Click here to read the Final Order and Settlement Agreement.

Please note that the Settlement Agreement specifically states that the acupuncturist does not admit or deny the allegations.


ESO Means Health Professional Cannot Practice While License is Suspended.

Once the DOH serves a licensee with an ESO, the licensee must immediately cease practicing and may not practice in Florida while the suspension is in effect.  The licensee may petition for a formal or informal hearing before the Division of Administrative Hearing and should take immediate action to protect his or her license. You are only allowed to dispute the allegations against you. If you are served with an ESO, this is a very serious matter. Retain the help of an experienced health care attorney immediately.

To see a prior blog on ESOs and Medicaid Fraud, click here.


Protecting Your Professional License and Reputation.

Although there are no laws in Florida that require health care professionals to have a second employee in the exam room, many medical professionals opt to take that precautionary measure. According to the Orlando Sentinel, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists support having a “chaperone” available for exams, regardless of gender. To read the entire Orlando Sentinel article, click here.

It is unknown how many health care professionals are charged criminally with sexually abusing patients each year, but the DOH investigates every accusation of misconduct. Allegations of sexual misconduct are very serious and emergency suspension in such cases are the norm. Be sure your health care facility supports staff when they ask for another health care professional to be present during patient exams.


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


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

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


Comments?


As a health care professional, do you ask for a coworker to join you in examinations? Why or why not? Please leave any thoughtful comments below.


Sources:

Department of Health v. Ragu P. Nath, A.P. Case Number 1D12-3358. Final Order and Settlement Agreement. (March 6, 2013). From: http://ww2.doh.state.fl.us/DocServiceMngr/displayDocument.aspx

Pavuk, Amy. “Molestation Cases Highlight Patients’ Potential Vulnerability in Exam Room.” Orlando Sentinel. (June 16, 2013). From: http://articles.orlandosentinel.com/2013-06-16/health/os-acupuncturist-molest-allegations-20130616_1_winter-garden-police-exam-room-26-year-old-woman


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

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


Tag Words: Emergency suspension order (ESO), Department of Health (DOH), license suspension, administrative disciplinary proceeding, petition for review, emergency disciplinary action, license restrictions, practice restrictions, settlement agreement, license health care provider, licensed health care professional, formal hearing, informal hearing, division of administrative hearing, administrative law, court of appeals, Florida statute, Florida case law, defense attorney, defense lawyer, health lawyer, health attorney, The Health Law Firm


"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.
6/19/2013

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