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

Tuesday, March 15, 2016
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law


This is the final part in a three part blog series focusing 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.

Click here to see part one and two of this blog series and read the first twenty mistakes to avoid.

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:

21.    Talking to investigators, nursing board staff or attorneys, in the mistaken belief that they what they say will not be used against them.  Note:  Every in Florida, it is our understanding that every telephone conversation with DOH personnel is entered into their computer data base and often internal e-mails are exchanged among investigators, attorneys and staff sharing this information afterwards.

22.    Believing that because you haven't heard anything for several months matter has "gone away."  The matter does not ever just go away.  You will receive a letter or an order if the case is dismissed and it will clearly state this.

23.    Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
24.    Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain written witness statements, obtain character references, obtain records such as military service records and performance evaluations, conduct research, obtain experts, and perform other tasks that may assist defending the case once the investigation has been completed.

25.    Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel (in Florida) of your licensing board for a decision.  This should be done through your experienced attorney.

26.    Taking legal advice from your colleagues regarding what you should do (or not do) in defending yourself in the investigation.  Everyone's opinion is different.  Everyone's experiences are different.  Only an attorney who has seen a large number of similar cases can provide valid advice that you may be able to rely on.
27.    Retaining "consultants" or other non-lawyer personnel to represent you in the matter, instead of experienced legal counsel.

28.    Believing that the case is indefensible so there is no reason to even try to defend yourself or to attempt to have it dismissed.  Remember that, just as in a criminal case, in a licensing disciplinary case, the burden of proof is on the state.  The state must put on sufficient evidence to prove that you have committed the offenses and often it is not able to do so.

29.    Attempting to defend yourself in the case.  

30.    Believing that because you know someone on the Board of Nursing, with the Department of Health, or a state legislator, that influence can be exerted to have the case dismissed.  This is definitely not the case.  If you do know someone on the Board of Nursing, that person is required by law to recuse (disqualify) herself/himself from any discussion or vote on your case.

31.    Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the investigator for them, and to prepare and submit materials to the hearing panel on your behalf.
32.    Immediately contacting the state impaired nurse's program (in Florida, the Intervention Project for Nurses or "IPN"), because the investigator or your employer tells you that you must.  Contact an experienced attorney first.  This is often not the right thing to do.

33.    Believing that if an Emergency Suspension Order (ESO) or Emergency Restriction Order (ERO) is entered against you that it may be successfully appealed.  In realty, ESOs and EROs are reviewed by the appellate courts (if there is an appeal) based solely on what is contained "within the four corners of the document."  Nothing outside the document may be considered.  If the ESO or ERO appears to state a sufficient case for an emergency suspension or restriction (whether the facts it states are actually true or not), the court of appeal is required to uphold the emergency suspension.

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. 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.
Copyright © 2016 The Health Law Firm. All rights reserved.
3/15/2016

Comments:

Response to: THE 33 BIGGEST MISTAKES FOR A NURSE TO AVOID AFTER BEING NOTIFIED OF A COMPLAINT AGAINST THE NURSE'S LICENSE PART 3 OF 3
Friday, April 1, 2016
oberdella Melvin says:

I would like to speak to someone about my nursing license pti completed charges dismissed arrest not sealed I feel my nursing attorney sold me out and wants more money to go back before the board to have order over turned

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