Author: Eli Stutsman

Defending a licensing Board complaint during the first few days

You’re a physician, pharmacist, or nurse, and you just learned a complaint has been filed against you with the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing. Now what?

Stop, collect your thoughts, establish the first deadline

If you just received word-of-mouth notice, or a letter from your licensing Board, time is momentarily on your side, so take advantage of it. Avoid knee jerk reactions. Whatever you do, do not call your licensing Board or the investigator that sent you a letter. You’re not ready. You’re too emotionally involved. Instead, establish the first deadline. Get time under control. Stop. Think.

Don’t assume you know the substance of the Board complaint

It is only natural to speculate about the nature of the complaint. The tendency is to speculate based upon what you know, and then rationalize why the Board complaint is unfounded. The problem with this approach is that your knowledge of the complaint is most often limited, and your conclusions may therefore be wrong. This is no way to plan your defense.

Retain a healthcare defense attorney with experience defending licenses for physicians, pharmacists, and nurses

The better approach is to have a healthcare defense attorney contact the investigator, to learn about the complaint and to further discover what most concerns the investigator. Be aware that this call to your investigator is not a call you can make well, because once the investigator explains the basis of the complaint, a reaction will expected of you. It’s only natural; this is the way conversation works. You, however, will not be prepared to answer. Yet there you are, on the phone with the investigator, your mind racing, wondering how to respond to fill the silence. This is no time to be experimenting with answers. Again, the better approach is to have an experienced healthcare defense attorney contact the investigator. Your attorney will then share this information with you in a private setting where the issues and concerns may be thoughtfully explored, without risk to you. Remember, your best answer to the complaint will take some time and work to marshal; it will not emerge extemporaneously during a first phone call with the investigator. Have your attorney make that first call instead.

Don’t blame others until you have explained your role

If others were involved in the circumstances setting up the Board complaint, do not blame them, at least not at first. For some, placing blame where it belongs is a strong personal instinct. If others were involved, they will be investigated or interviewed too. When it is your turn, the investigator wants to understand your role in the circumstances behind the complaint and, until your role is satisfactorily understood, blaming others will come off as evasive, uncooperative, and non-responsive. Don’t make this mistake. An experienced healthcare defense attorney will help you avoid this mistake. And remember, if your role in the complaint was truly small and non-contributing, it will not take long to explain, and a good explanation will reference the participation of others, from which the investigator will draw all appropriate conclusions. In the context of a medical Board investigation, blaming others requires a deft touch.

How to decide whether to file a notice of appeal

My practice includes appellate litigation in state and federal courts. Most often, I am recruited to join the litigation team soon after a ruling or finding has gone awry. As such, I am the new lawyer on the team, at the start of the appeal, the occasional second half of litigation. There are always many questions, but the key questions concern the likelihood of success on appeal and whether to file the notice appeal in the first place.

Evaluating the merits of an appeal in an “easy” case

In an “easy” case, I can evaluate a single issue appeal in two to three hours, and then share my opinion with the trial lawyer and client. A decision can then be made to file the notice of appeal, or not. It is nice when it happens this way, but it only happens this way in a small percentage of the cases for the simple reason that most legal issues are not simple and most cases (or “records”) are much more complicated than a single legal issue.

Evaluating the merits of an appeal in an “hard” case

In a “hard” case, it can take ten to 20 hours before I will have an initial opinion to share with the trial lawyer and client.  Time permitting, this work can be completed to inform the decision to file the notice of appeal. It is nice when it happens this way, but it only happens this with advance planning.

Evaluating the merits of an appeal in a hard case, with a large record, multiple issues, and much at stake

In the hard cases, where there is much at stake, and the merit of the potential appeal is uncertain, sometimes all you can do before the deadline to appeal is to determine that the appeal is colorable, in good faith, and has sufficient merit to move forward. Then, after the notice of appeal has been filed to protect the deadline – and this next point is key – the decision to appeal can and should be revisited at each new phase of the work, until such time the decision to appeal is plainly justified, or not. In those cases where the decision to appeal turns out not to be justified, the appeal may be dismissed.

Moving forward one step at a time in a hard case with no answers for a good result

The best example I have of such a hard case, with far more questions than answers at the start of the appeal, is the case of O’Donnell-Lamont & Lamont (260 KB). In this appeal, I eventually won a unanimous 7-0 decision by the Oregon Supreme Court, in which the Oregon Supreme Court applied a recent holding from the United States Supreme Court and reversed the Oregon Court of Appeals in favor of my clients. At the start of this appeal, however, I did not know what I could accomplish and nothing was certain other than my client could not accept the loss in hand. By the end, however, this appeal was a big victory, restoring custody of two small children to my clients, the maternal grandparents. This unanimous 7-0 decision by the Oregon Supreme Court was also an important victory for children throughout Oregon because it established the legal precedent to be applied in third-party child custody disputes, affording more protection for the best interests of children.

There were also several key accomplishments along the way. Until this appeal, the Oregon Court of Appeals had never granted reconsideration en banc, meaning by the full Court of Appeals, with all ten judges participating. Later, after the Court of Appeals denied my clients any relief in a split 5-5 decision, the Oregon Supreme Court accepted this appeal as the vehicle to resolve a number of similar third-party custody issues in Oregon. The other similar pending cases involving the same subject matter were placed into abeyance (on hold) pending the outcome of this appeal. So, in the end, the Oregon Supreme Court reversed the Court of Appeals in my case, and the other cases too. All this from an appeal where, in the beginning, the merit of the appeal was uncertain and legal precedent was against us.

Two “red flags” when interviewing a licensing lawyer to defend your medical license

Red flag #1: Blaming the licensing Board’s investigator

Earlier this year, a practitioner hired me as her second lawyer, and I took over the representation of her case. Later, after much of our work had been completed, she expressed surprise at how helpful the investigator had been. When I asked her why she was surprised, she explained that her first lawyer blamed the investigator, saying something like, “Oh, you have Jane Doe for an investigator, you’re in trouble.” That was unfortunate. I have worked with the same investigator and find her easy to work with. More importantly, I regularly represent nurses, pharmacists and physicians before the Oregon State Board of Nursing, the Oregon Board of Pharmacy, and the Oregon Medical Board, and there has never been a reason to blame the investigator. It is my opinion that if a lawyer you interview blames the investigator, keep interviewing lawyers until you find one that works well with investigators. Your interests will be better served in the short and long run.

Red flag #2: Utilizing a litigious approach with an investigator

Last year I had a chance to ask an investigator what she thought of the relatively small group of lawyers that routinely appear before her licensing Board. I was surprised to learn that some used a tough approach, keeping communications short, and often implying that a contested case hearing (litigation) would be necessary when, in fact, they seldom are. Needless to say, these lawyers, due to their uncooperative reputations, were not favored by the investigators. As my record will demonstrate, I am willing to advance tough litigation in defense of physicians, pharmacists, and nurses, but litigation must be reserved for the right circumstances.

More importantly, consider the disadvantage you may suffer because of your lawyer’s “tough talk.” For example, throughout the course of a licensing Board’s investigation, much information must be exchanged, and any alleged practice discrepancy prompting the complaint against you must be carefully evaluated. Consider also that you will most likely be interviewed by the investigator, and much of the work of the interview can be accomplished between your lawyer and the investigator, sparing you much grief. Whatever the cause of the complaint, solutions must be negotiated. Ultimately, the investigator will write the summary of your case, including recommendations, that will become the basis of the Board’s decision against your medical license. For all these reasons, it is my opinion that a cooperative and professional relationship between your lawyer and your licensing Board’s investigator will lead to the most efficient and complete exchange of information, and the best resolution of your case. Along the way, you will be better informed too.

Do not dismiss the power of your licensing Board

I have won significant federal court litigation defending health care providers, including physicians and pharmacists. Knowing this, a health care provider growing weary of defending against his or her licensing Board will occasionally ask why I can’t do more in his or her case. For example, one physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and one nurse asked whether I could obtain a Temporary Restraining Order (TRO) against the Oregon State Board of Nursing. The answer is almost always “No.” Let me explain why.

The 50 states regulate medical licensing and practice standards

In our State-Federal scheme of government, the power to regulate medical practice and licensing is reserved to the 50 states. Admittedly, there is federal “overlay,” but still, when it comes to ensuring safe medical practice through the licensing of physicians, pharmacists, nurses, that role and power belongs to the states.

The 50 states exercise their “power” through state agencies

You may recall from civics classes that state and federal power is spread across three branches of government, the Legislative, the Judicial, and the Executive branches. The Executive branch of state government is headed by the Governor, and the bulk of any state’s work is accomplished through a multitude of state agencies belonging to the executive branch.

Your licensing Board is a state agency

Whether you are a physician, pharmacist, or nurse, your licensing Board is a state agency, specifically empowered to ensure the safe practice of your profession (public safety) and the competency of each individual practitioner.

What you need to know: Respect your licensing Board

So, when the physician wanted me to sue the Oregon Board of Medicine in “a real court of law,” and the nurse asked whether I could obtain a TRO against the Oregon State Board of Nursing, you now know why the answer was “no.” Even when the complaint against you is wrong, or the licensing Board is wrong, the licensing Board is nonetheless fulfilling its role as a state agency regulating your profession. It is true that in some cases there may be an appeal to a state court (this happens occasionally) and, in the exceedingly rare case, an argument for a restraining order from a trial court (this has happened only once in my career), but this is not where you start. You start with the agency – i.e., your state licensing Board – because your state licensing Board is not only empowered to regulate your profession, it has the most power to do so, and your interests will be best served by taking that power seriously.

More on how to “pass” (or fail) your licensing Board interview

Whether you are being investigated by the Oregon State Board of Nursing (OSBN), the Oregon Medical Board (OMB), or the Drug Enforcement Administration (DEA), your success during your interview is key to the successful resolution of the investigation. Today I will share with you the experience of three clients – a nurse, a physician, and a dentist – all of whom went to interview within a 14-day span this month. Two passed. One failed. Let my tell you why.

The nurse and the Oregon State Board of Nursing (OSBN)

Earlier this year I undertook the representation of a well-qualified and experienced nurse under investigation by the Oregon State Board of Nursing (OSBN). She went to interview this month. At one hour and 45 minutes, her interview was long, and seemed longer with four of us in a room that was too small and too hot. The interview was led by the OSBN nurse investigator and assisted by an OSBN advanced practice nurse, with my client the focus of attention.

The first hour of the interview was necessary to get at the core issues in this unusually complex case. The OSBN’s investigator and advanced practice nurse were well prepared (aren’t they always?). My client was also well prepared, however.

As we passed through the first hour of the interview, I was impressed by the depth of the discussion and by my client’s answers. I privately marveled at how few members of the public will ever appreciate how carefully the practice of nursing is regulated in Oregon. My client was subjected to questions for an hour and 45 minutes, by two investigators, and her interview had the tone of a thoughtful discussion. She passed the test. The case isn’t over, but my client did a stellar job, and representing her that day was professionally rewarding.

The dentist and the Drug Enforcement Administration (DEA)

I also prepared a dentist for an interview this month before the Drug Enforcement Administration (DEA). In this case, the dentist sought reinstatement of his DEA Registration, earlier surrendered.

In a December 7, 2015 post, I explained that in the right circumstances, reinstatement of a surrendered or revoked DEA Registration is possible. These can be tough interviews, however, because in cases where a DEA Registration has been surrendered or revoked, there are usually a few “sensitive” issues. Also, the interviews are conducted by DEA Drug Diversion Agents and, in my experience, there are always two of them.

This interview was nonetheless a success. By the end of the interview, my client was advised he would have his DEA Registration back in four to six weeks, with a few temporary, common sense restrictions, but nothing that will interfere with his practice. It doesn’t get much better than that!

The physician and the Oregon Medical Board (OMB)

In the same 14-day span this month, I was hired by a physician but, unfortunately, her interview occurred the week before I was hired, and she went alone, unprepared, and unrepresented. She failed. Let’s consider what my client was up against. By the time of her interview at the Oregon Medical Board, the Board’s investigator, the Board’s Investigative Committee’s (IC), and the Board’s expert, had all finished their work. Counting the Board’s investigator, the Board’s expert, and the four members of the Investigative Committee, six people were prepared to interview my client. If you find yourself facing a Board interview, ask yourself the following questions:

  • What have you done to prepare?
  • Who has given you legal advice?
  • Who has prepared you?

If you cannot answer these simple questions in a reassuring manner (without rationalizations or excuses), you are not ready for your interview. As I have said many times before, an interview with your licensing Board is no place to show up and see what happens.

The moral of the story

In this case, there is little doubt in my mind that this physician should have passed her interview, had she been ready. But she wasn’t ready. Don’t let this happen to you. An experienced healthcare defense attorney will help you prepare for your interview.

How to “pass” (or fail) your licensing Board interview

Whether your are a physician, pharmacist, or nurse defending against an investigation by the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing, what I am about to share with you share with you holds true. At a minimum, you should expect your licensing Board to request (a) your written statement answering the complaint against you, and (b) your appearance at the Board’s office to sit for a recorded interview. To help my client’s obtain a good interview, I keep the following points in mind while helping them prepare their written statements, and while preparing them for interview.

Know your case and accept responsibility where necessary

Although many Board complaints are full defensible, many others are not, and it is important to know which type of case you have. While it is professionally rewarding to defend a licensee 100 percent, when a mistake was made, it is often preferable, if not necessary, to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake. Your licensing Board will respect either approach, so long as we have correctly identified which type of case you have. An experienced healthcare defense attorney will help you accurately evaluate your case and develop a plan to defend your medical license.

Be well prepared for your licensing Board interview

If you do not know what the issues are, or what the likely questions will be, you are not prepared for your interview. It is that simple. Please know that an interview with your licensing Board is no place to show up and see what happens. If this is your approach, you will fail. In sharp contrast, an experienced healthcare defense attorney will identify the controlling legal issues and the questions you can expect to be asked during your recorded interview. Please also know that your investigator will be well prepared to interview you and, by the time of your interview, your investigator will have drawn tentative conclusions about your case. Some of the questions you will be asked will be well thought out in advance and, in those cases where your written statement was misleading, some of the questions will be pointed, and you will likely face a series of questions intended to expose your lack of candor. Do not let this happen to you. An experienced healthcare defense attorney will help you avoid this trap.

Do not attempt to mislead your licensing Board

You are taking a huge risk if you attempt to mislead your licensing Board, either in your written statement, or while answering questions during your recorded interview. Your licensing Board has resources, and it will conduct a background check. One or more investigators will investigate your background, and the investigators are very skilled at what they do. If, for example, you had a bad experience in another state, especially one involving a similar issue giving rise to your current licensing Board investigation, you should expect the out-of-state incident to be discovered and fully investigated by your licensing Board. Please know that any effort to mislead your licensing Board about the prior out-of-state incident will almost certainly be exposed and, when this happens, you will have lost your credibility with your licensing Board. Do not let this happen to you. The better approach is to know when to acknowledge the mistake, accept responsibility, provide mitigating context, and take corrective action to prevent a recurrence of the mistake. This is delicate work, requiring the assistance of an experienced health care defense attorney, to ensure you are adequately defended.

Conclusion

In sum, to ensure a good interview, you need to accurately evaluate your case, you need to be well prepared, and you need to be candid when answering questions, all the while defending yourself and protecting your license. This is difficult work, and it requires the assistance of an experienced healthcare defense attorney to do it well.

Caution: Do not represent yourself before your licensing Board

I have written about this subject before, but the situation keeps reoccurring, and the “lesson” keeps repeating itself, so I will repeat myself: Do not represent yourself when you are under investigation by your licensing Board. Here are three recent examples of what can go wrong:

Example #1 – A pharmacist before the Oregon Board of Pharmacy

The first case involves an investigation by the Oregon Board of Pharmacy. In this case, the pharmacist met the standard of care expected of a pharmacist when presented with a suspect prescription. Unfortunately, the pharmacist was so focused on mistakes made by others that he (1) declined to provide the Board with a written statement and (2) appeared for his recorded interview prepared to talk about the mistakes of others, and little else. The recorded interview went poorly, and the Board of Pharmacy issued a Notice of Proposed Disciplinary Action, threatening significant discipline, including probation and loss of pharmacist-in-charge (PIC). The pharmacist hired me soon thereafter. After completing my review, I find that the pharmacist had a near-perfect defense but, without the benefit of experienced legal advice, he failed to present that defense when it mattered most.

Example #2 – A physician before the Oregon Medical Board

The second case involves an investigation by the Oregon Medical Board. In response to the Board’s request, the physician submitted a written statement that was too short given the subject matter of the Board’s concerns. The physician also appeared for her recorded interview before the Investigative Committee (IC) without adequate preparations. The physician hired me after the Board requested that she consent to (1) an Interim Stipulated Order (ISO) significantly restricting her practice, and (2), an Order for Evaluation subjecting her to an expensive, out-of-state assessment, of her ability to practice medicine. Although the Board’s requests may reflect poorly on the physician, with the benefit of my experience, I do not see the Board’s action as an accurate assessment of the situation, because I know the physician was unrepresented by legal counsel, and under prepared when it mattered most, i.e., when she submitted her written statement and when she attended her IC interview.

Example #3 – A nurse before the Oregon State Board of Nursing

The third case involves an investigation by the Oregon State Board of Nursing (OSBN). In this case, the Board of Nursing made several offers to settle the case but, without the benefit of experienced legal counsel, the nurse failed to appreciate that the Board’s settlement attempts were offered in an effort to avoid discipline. After several failed attempts to reach a compromise, the Board lost patience and voted to discipline the nurse, at which point, the nurse hired me. Even the simplest of cases can become difficult when the parties are polarized against one another.

The lesson: Do not represent yourself before your licensing Board

The three cases summarized above, involve three different licensing Boards, and three different situations where things went poorly for the licensee. In the first and second cases, the licensing Board sought serious discipline, and in the third case, the licensing Board sought minor discipline. The first case should have been easily defended and the third case should have been easily settled, while the second case needed to be developed and defended. All three cases, however, have one thing in common: The licensee mistakenly decided to proceed alone, without legal representation and, in each case, the licensee came to regret that decision. Do not make this mistake. If you are a licensed healthcare provider facing an investigation by your licensing Board, I urge you to seek legal counsel from an experienced healthcare defense attorney at the first opportunity.

One way to evaluate an expert’s qualifications when defending against the DEA

Ask yourself: How many doctors has the expert’s testimony convicted?

I have the privilege of defending physicians, pharmacists and nurses before state licensing Boards and the Drug Enforcement Administration (DEA). In one such case defending against the DEA, there was much discussion about which expert physician had the better qualifications – our expert, or the the government’s expert? Each was capable of qualifying as an “expert witness,” but I feared my client, the defendant-physician, took too much comfort in the better qualifications of his expert. I feared this nuanced discussion of which expert witness had the better qualifications was creating a false sense well-being mere weeks before trial. For me, perhaps the more important question is how many doctors has the expert’s testimony convicted?

Do not dismiss the DEA’s expert witness

One thing is certain, if the DEA’s expert witness has led a jury to convict another physician, that’s a dangerous witness, despite any perceived lack of qualifications. In my experience, it is not the expert witness’ qualifications so much as it is what the expert is willing to say to a jury.

And do not become complacent

I can tell many stories where the physician believed the risk of conviction, or the risk of a lengthy prison sentence, was low. In my experience, physicians and their families often rationalize why they won’t be convicted, or, if they are convicted, why they will receive a lenient sentence, perhaps probation, or time served, or one year, only to be sentenced to 5 years or more, and in one case, to 15 years. While I have obtained good results, and have even obtained the release from prison of two physicians, most often, it doesn’t happen that way. If you want to see for yourself, search the internet using some of these search terms: “physician convicted,” “doctor convicted,” “physician sentenced,” “doctor sentenced,” “physician acquitted,” and “doctor acquitted.” You will soon discover that good results for defendant-physicians facing DEA prosecutions are few and far between. Prepare accordingly.

Another reason to retain an appeals attorney early in the process

Orders versus judgments? When and what to appeal?

As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because he or she is uncertain whether a particular order is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? What to do?  Time is short, any research would be rushed, and this is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.

When and what to appeal? – the source of the problem

Notices of appeal are often due within 30 days after entry of a judgment or appealable order. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice, and appeals from agency actions (administrative law). The important thing to know, however, is that much time, money, and grief can often be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.

As an appeals lawyer, here is one way I avoid the problem

Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.

Is your attorney capable of a smart pharmacist’s license defense?

Smart legal decisions require an experienced pharmacist’s attorney

Two pharmacists recently retained me after coming to the realization that their former attorneys were not representing them well before the Oregon Board of Pharmacy. In the first case, in an ill-advised move, the pharmacist took his case to hearing and his pharmacist’s license was revoked. This pharmacist retained me soon after he was revoked, and I had worked with him less than 20 minutes before I realized his case never should have been litigated, because revocation was all but certain. This pharmacist’s case should have been settled, and it was capable of settlement, but to know this requires relevant experience. After reviewing key parts of the record, it was further apparent to me that the arguments advanced by the pharmacist’s last lawyer were sure losers, revealing a lack of experience with the Oregon Board of Pharmacy, law, and preferable settlement options. Starting all over, we are now on the path to reinstatement of his license, which also requires an experienced pharmacy Board attorney.

In the second case, unlike first, the pharmacist hired me at the start of the Board of Pharmacy’s investigation because he not satisfied with his lawyer’s ability to answer simple questions, such as the following:

  • In light of the complaint against me, what will the Board of Pharmacy likely do?
  • How will discipline in Oregon affect my pharmacist’s licenses in two other states?
  • How will discipline in Oregon affect my employment, and how do I manage it?

When this pharmacist called me, I quickly answered these questions, and he retained me.

How to tell an experienced Oregon Board of Pharmacy lawyer

An experienced pharmacist attorney can quickly answer many questions, will certainly be able to answer the questions set out above. An experienced pharmacist’s lawyer will also be able to explain the process, from beginning to end – starting with the Board’s first letter notifying you of the complaint and requesting your written statement, to the formal interview process, to the Notice of Proposed Discipline, and the settlement versus litigation options. If your lawyer has any relevant experience at all, he or she will have worked with one or more pharmacy inspectors, and will certainly have worked with the Compliance Director for the Oregon Board of Pharmacy. An experienced pharmacist’s attorney will also demonstrate an understanding of the pharmacy laws applicable to your case before the Oregon Board of Pharmacy. In sum, when you ask questions of your lawyer, what follows should be an easy, informative discussion, and very reassuring, not because it is all good news, but because useful information and options are forthcoming. If useful information and options are not quickly forthcoming, consider consulting other attorneys until your comfort level is satisfied.