By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The investigation of a complaint which could lead to the revocation of a massage therapist's license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter and it should be treated as such by the massage therapist who receives it. Yet, in many cases, attorneys are consulted by massage therapists after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney's ability to achieve a favorable result for the massage therapist.
These are the 25 biggest mistakes we see in the massage therapy cases we are called upon to defend after a DOH investigation has been initiated:
1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.
2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)
3. Making a written statement in response to the "invitation" extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)
4. Failing to carefully review the complaint to make sure it has been sent to the correct massage therapist. (Note: Check name and license number).
5. 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 massage therapist'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, or failure to comply with PRN instructions.)
6. Providing a copy of the massage therapist's curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)
7. Believing that if they "just explain it," the investigation will be closed and the case dropped.
8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.
9. Failing to forward a complete copy of the patient record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
10. Delegating the task of providing a complete copy of the patient record to office staff, resulting in an incomplete or partial copy being provided.
11. Failing to keep an exact copy of any records, documents, letters or statements provided to the investigator.
12. Believing that the investigator has knowledge or experience in health care matters or procedures being investigated.
13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.
14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
16. Believing that because they haven't heard anything for six months or more the matter has "gone away." The matter does not ever just go away.
17. 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.
18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.
19. 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 of your licensing board for a decision.
20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
21. Retaining "consultants" or other non-lawyer personnel to represent them.
22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
23. Attempting to defend themselves.
24. Believing that because they know someone with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.
Bonus Point: 26. Communicating with the Department of Health about the pending case.
Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not "legally sufficient" and do not constitute an offense for which the massage therapist may be disciplined.
In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In 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 obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.
Contact Health Law Attorneys Experienced with Department of Health Investigations of Massage Therapists.
The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
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.
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Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health
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