THE 33 BIGGEST MISTAKES FOR A NURSE TO AVOID AFTER BEING NOTIFIED OF A COMPLAINT AGAINST THE NURSE'S LICENSE PART 1 OF 3

Wednesday, February 17, 2016
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law


In this three part blog series, I will focus on how the investigation of a complaint against your nursing license could lead to the revocation of the license, and the assessment of tens of thousands of dollars in fines, as well as a number of adverse collateral consequences.  Yet it usually starts usually with a simple letter from the state regulatory authority, in Florida, the Department of Health (DOH).

This is a very serious legal matter and it should be treated as such by the nurse who receives it.  Yet, in many cases, we are consulted by nurses after the entire investigation is over, the case has been presented to the Probable Cause Panel or to the Board of Nursing, and formal charges have been filed against them.  They have attempted to represent themselves throughout the case, unsuccessfully.  They have made statements which can be used to prove the case against them.  Often, the mistakes that have been made severely compromise our ability to achieve a favorable result for the nurse.

These are the 33 biggest mistakes we see in the cases we are called upon to defend after a licensure complaint investigation has been initiated against a nurse:

1.    Failing to maintain good, inexpensive professional liability insurance that has coverage for payment of your attorney's fees and legal defense costs for complaints against your nursing license (e.g., NSO Insurance, HPSO Insurance, CPH & Associates Insurance).  Get this coverage now; after a complaint is filed it will be too late.
2.    Failing to keep a current, valid address on file with the state licensure authority (in Florida, the Department of Health or DOH), as required by law.  This may seriously delay the receipt of a notice that an investigation is occurring, letters, and other important correspondence related to the investigation.  It may also lead to an additional charge against you.

3.    Failing to go online immediately after receipt of any complaint or notice of investigation and confirming that your address of record and all other information (on your provider profile, if an advanced nurse practitioner) is up to date and completely correct.

4.    Contacting the investigator and providing him/her an oral statement or oral interview.  (Note:  In Florida, there is no legal requirement to do this.)  We recommend that you never do this.  Anything that you state may be used to help the state prove its case against you.  The DOH investigator is the equivalent of a police investigator attempting to make a case against you.  Don't help them.
5.    Making a written statement in response to the "invitation" extended by the DOH investigator to do so.  (Note:  In Florida, there is no legal requirement to do this.  See above.)

6.    Failing to carefully review the investigation letter or complaint to make sure it has been sent to the correct nurse.  (Note:  Check the name and license number, especially if you have a common name.)

7.    Believing that your employer is going to provide you a legal defense in such an investigation.  Many nurses believe that because they work for a large health care system such as a hospital or nursing home chain, that their employer is going to pay for their defense in such an investigation.  This is often the reason given for not purchasing their own independent nursing malpractice insurance, as well.  We have found that often it is the employer that has made the complaint against the nurse and often after the employer has fired the nurse.  In most cases, employers do not cover such legal defense expenses.
8.    Failing to ascertain whether or not the investigation is on the "fast track" which may then result in an emergency suspension order (ESO) suspending the nurse's license until all proceedings are concluded.  (Note:  This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, failure to comply with instructions from the Intervention Project for Nurses (IPN), or default on a student loan.)

9.    Providing a copy of the nurse's curriculum vitae (CV) or resume to the investigator because the investigator requested you to do so.  Note:  There is no legal requirement to do this in Florida.  We have actually had information from the health professional's CV or resume used against him/her in the case later presented against that professional.

10.    Believing that if they "just explain it," the investigation will be closed and the case dropped.  This just about never happens.  More often, a statement made by the nurse is actually used against her to prove the nursing violations charged.  In Florida, virtually every case is presented to and reviewed by the Probable Cause Panel of the Board of Nursing.  Again, statements you make, no matter how innocent they seem, can be used against you to prove the charges.

Not every case will require submission of materials to the investigator.  Not every case will require submission of documents and information to the Probable Cause Panel after the investigation is received and reviewed.  There may be a few cases where the allegations made are not "legally sufficient" and do not constitute an offense for which the nurse may be disciplined.  However, only an attorney who has handled a large number of nursing cases will be able to tell which cases these are.


In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH (prosecuting) attorney to recommend a dismissal to the Probable Cause Panel.  In still other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing.  

The key to a successful outcome in all of these cases is to immediately obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Nursing in such cases and does so on a regular basis.


Be sure to check our website at www.thehealthlawfirm.com regularly for Part two of this blog series to find out the next ten mistakes to avoid. We regularly publish helpful and informational blogs that will benefit you and your professional career.


Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced practice registered nurses, certified registered nurse anesthetists, midwives and licensed practical nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm, please call (407) 331-6620 or 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.


Keywords: Board of Nursing, Discipline, Board of Nursing attorney, Board of Nursing case, Board of Nursing lawyer, Board of Nursing representation, Florida Board of Nursing, Department of Health (DOH), DOH investigations, probable cause panel, licensure complaint investigation, health law firm, licensed practical nurses, medical licensing board, nurse attorney, nurse lawyer, nurse midwives and nurse practitioners, nurse representation, legal representation for nurses, health law, 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.
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2/17/2016

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