Thursday, March 3, 2016
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 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 of this blog series and read the first ten 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:

11.    Failing to submit a timely objection to a subpoena for records made to you when there are valid grounds to do so.  If there are valid grounds for objecting to a subpoena issued by an Investigator (or by an order from the Surgeon General or another authority to do so) then it can and should be made.  For example, if the patient's medical record is subpoenaed from you and you are not its actual custodian.  Not also, in Florida, the Department of Health does not have any authority to independently enforce subpoenas.

12.    Trying to obtain and forwarded a copy of a patient's record to the investigator when you are not the custodian of the patient's record.  If you are the employee of a clinic, hospital, nursing facility, institution or medical group, any request for records should be made to the actual records custodian by the investigator and should be provided only by the actual records custodian. It is not your job to do this.

13.    Delaying obtaining legal counsel in the belief that you can explain the allegations away or represent yourself in the matter.  Remember, this is a legal proceeding that is considered to be a "quasi-criminal proceeding" since it can result in discipline against you that will remain on your record forever.

14.    If you are the custodian of the patient medical record and it must be produced to the investigator, forwarding only a portion of it or failing to forward a complete copy of the patient's health record when subpoenaed by the investigator as part of the investigation (if no objection is going to be filed).  We have seen this problem, especially with electronic health records.  If you do provide a copy of the patient's health record (whether to the investigator or to your attorney) you must be certain you produce each and every part of it.  This includes, daily journal entries, progress notes, periodontal charts, bills, treatment plans, x-rays, photographs, history & physical, informed consent forms, notes and telephone messages, correspondence, insurance company bills and EOBs.

15.    Signing a verification affidavit or "Certificate of Completeness" attesting that the copy of whatever record you provided is the "complete copy."  This is a trap for the unwary.  Often lab reports, consults, correspondence, or other documents are not located until later, and you must be able to use these.  In Florida, there is no requirement to do this. You cannot be forced to sign such a certificate of completeness and we advise our client not to do so.

16.    If providing a copy of the patient record, delegating the task to someone else in your office, often resulting in an incomplete or partial copy being provided.

17.    Failing to keep an exact copy of any health records, documents, letters or statements provided to the investigator.

18.    Believing that the investigator has knowledge or experience in nursing procedures, medical procedures or the health care matters or the specific care or procedures being investigated.

19.    Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

20.    Failing to check to see if your nursing malpractice insurance carrier will pay the legal fees to defend you in this investigation.  In the absence of coverage by an insurance carrier, failing to retain the services of a health care attorney experienced in nursing board cases to represent them from the beginning of the investigation.

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 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

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. 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.

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