Author: Eli Stutsman

When facing serious discipline, do not assume your license in another state is safe

Posted on November 17, 2015 by - Licensure

In a prior post on August 30, 2015, I cautioned against applying for a new license in a second state before an investigation in your home state is concluded. The reason was simple. Once you are disciplined by one state licensing Board, the licensing Boards in the other states in which you are licensed will likely follow suit by opening a second investigation, often imposing some form of discipline, or even mirror-image discipline, sometimes called “reciprocal discipline.” Knowing this, it is almost always a mistake to apply for a new license in another state while a current investigation and potential for discipline is pending against you in your home state. It just leads to another investigation in a state you have never practiced. Don’t risk it, unless there are extenuating circumstances and the consequences are fully understood. This practical advice applies whether you are licensed as a physician, pharmacist, or nurse, facing discipline by the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing.

Today’s warning

Today I have a different warning: If you are facing serious discipline by your home state licensing Board, do not simply assume that your license in another state is safe. Here’s why: Once you are disciplined by your home state, you will likely have an obligation to report that discipline to all other licensing Boards in all other states in which you are licensed. Even if you fail to self-report your discipline to the other state licensing Boards, your discipline may be reported to a national data bank, and the other state licensing Boards will learn of your discipline through the national data bank. So, I repeat myself: If you are facing serious discipline by your home state licensing Board, do not simply assume that your license in another state is safe, and this practical advice applies whether you are licensed as a pharmacist, physician, or nurse, facing discipline by the Oregon Board of Pharmacy, the Oregon Medical Board, or the Oregon State Board of Nursing.

Work for the best result, but plan for the worst result

As I write this, I can think of one individual who lost his license in a revocation proceeding all the while thinking he could move to a nearby state in which he was licensed. It is, unfortunately, never that simple when a health care provider’s medical license is revoked or surrendered. And never forget that some serious offenses, the type of offenses that may lead to the surrender or revocation of your license to practice medicine, pharmacy or nursing, may result in your being excluded – i.e., federal exclusion by the Office of the Inspector General, or “OIG” – from participation in any employment that receives federal subsidies, reimbursement, or payment, which is most of the employments available to you as a physician, pharmacist, or nurse.

Be conservative to avoid surprises

This is important: Whenever you consent to discipline in one state, analyze the impact of that discipline on licenses you hold in other states. Always assume that similar discipline will follow in all other states in which you are licensed until you know otherwise. Be smart, make decisions and plan accordingly. And do not forget to consider the risk of federal exclusion by the OIG. In sum, you may be able to practice in another state after surrendering or being revoked elsewhere, but do the hard work first, and do not rely upon assumptions. An experienced licensing Board attorney can guide you through the analysis.

Criminalizing medicine

Posted on November 14, 2015 by - Appellate, DEA Prosecutions

Are some physicians being convicted and sentenced for “legal” prescriptions?

I say “yes,” and I have first hand experience defending physicians on appeal from such convictions and sentences. Perhaps the best example I have to offer is the case involving Drs. David and Randall Chube, two Gary, Indiana, physicians that I represented on appeal to Seventh Circuit Court of Appeals. See US v. Chube II, 538 F3d 693 (7th Cir. 2008).

DEA attorneys confuse the legitimate medical purpose rule

The problem occurs when the criminal conviction standard and civil standard of care – two very distinct legal standards – are confused, substituted, and/or conflated by DEA investigators, DEA attorneys, federal prosecutors, the government’s expert witnesses, and the PSR writers. In my opinion, this legal error – i.e., criminalizing medicine – occurs too often, during key phases the criminal proceeding, which include the:

  • DEA investigation (leading to more counts in the indictment);
  • Federal prosecution (leading to more convictions at trial); and
  • Federal sentencing (leading to longer prison sentences).

In my experience, this legal error occurs when the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a “legitimate medical purpose,” a subject that is discussed in more detail on the criminal violations page of this website, and numerous other pages as well.

Medical malpractice is neither criminal conduct nor relevant conduct

This point is key: A violation of the civil standard of care (usually called malpractice, or professional negligence) is, without more, not enough to prove a prescription drug crime, or the “relevant conduct” necessary to lengthen a prison sentence. The reason is simply. Malpractice alone, even when prescribing controlled substances, is not a crime, and malpractice alone is not enough to support a criminal conviction, or a finding of relevant conduct necessary to lengthen a prison sentence. Unfortunately for physicians, however, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered toward the malpractice standard, making multiple criminal convictions easier to win, and the relevant conduct necessary to lengthen a prison sentence, easier to find. Protect yourself – do not let this happen to you.

The legitimate medical purpose standard as applied in case of U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

At the time of sentencing in the Chubes’ case, the federal prosecutor and the PSR writer seemingly counted every prescription written by the Chubes as “relevant conduct,” without first reviewing each prescription to determine whether “drug diversion” – which is the crime – had in fact occurred. Drug diversion includes unlawful prescribing, unlawful dispensing, or drug dealing, i.e,. it is criminal conduct. Under the federal sentencing guidelines, relevant conduct, which is essentially other criminal conduct, is applied at the time of sentencing to increase the length of a prison sentence. In the Chubes’ case, Dr. Randall Chube’s sentence was increased to five years and Dr. David Chube’s sentence was increased to fifteen years. In the Chubes’ case, however, it wasn’t relevant conduct because it wasn’t criminal conduct. Another way to look at it is that the DEA “criminalized” medical error. Criminalization occurs when there is an unchecked expansion of the law by over-aggressive law enforcement.

On appeal, the Seventh Circuit Court of Appeals vacated both doctors’ prison sentences and “remanded” the case back down to the District Court for re-sentencing. The Seventh Court of Appeals explained that the District Court relied upon insufficient evidence to prove that the relevant conduct was in fact criminal conduct. See US v. Chube II, 538 F3d 693 (7th Cir. 2008). Shortly thereafter, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences once relevant conduct was correctly understood and applied.

Do license applications cause a sinking feeling in the pit of your stomach?

Posted on November 8, 2015 by - Licensure

If you are a physician, pharmacist, or nurse applying for a new license, or submitting a renewal application on an existing license, you have faced the “disclosure questions” that can be troublesome for some to answer. If you have recently hit the “submit” button, and experienced a sinking feeling in the pit of your stomach, you know what I am talking about.

Avoiding mistakes in the first place – one example

A common example is the arrest, stop, or conviction for driving under the influence of intoxicants – or a DUII. You must read the disclosure questions carefully, and just because you answered “no” in one state does not mean you will be able to answer “no” in all states in which you are licensed, or seek a new license. For example, a physician licensed in California, Oregon, and Washington, filing online renewal applications, will face different questions in each state and, depending on the facts of the DUII, may not need to disclose the traffic stop in Californian or Washington, but will almost always be required to disclose the traffic stop in Oregon. It all comes down to the specific facts of your case and how each state’s disclosure questions are worded and, with respect to this example, the Oregon Board of Medicine asks the tougher question. To avoid mistakes, it is necessary to read the disclosure questions very carefully, and to answer each question accurately. If you have a doubt, or experience that sinking feeling in the pit of your stomach, stop, and consult an experienced licensure lawyer immediately.

Too late? – Correct your mistake by filing an amended application

If you are a physician, pharmacists or nurse, and you have recently answered “no” to a disclosure question that required a “yes” answer, if you take quick action, it is not too late to amend your license application, to correct your mistake. I recently represented a out-of-state nurse that found herself in such a position. She had a minor criminal history incurred while she was young, before she was a nurse. She very much wanted an Oregon nurse’s license, and she did not want to make a mistake that would risk her license application, but the moment she submitted her online application to the Oregon State Board of Nursing, she feared she has acted too quickly, and that sinking feeling in the pit of her stomach set in. She called me, and I quickly called the Oregon State Board of Nursing, to ask that the Board hold off and wait for our amended application. Together we reviewed her application for completeness, and determined a small amount of information should be supplemented, and we quickly furnished it to the Board of Nursing, supplementing, or amending, her previous application. The Board of Nursing responding favorably, and she is now an Oregon registered nurse.

What not to do

I am aware of one case involving an out-of-state pharmacist that never disclosed a decades-old drunk driving arrest, and another case involving a Certified Nursing Assistant (CNA) that never disclosed a decades-old disorderly conduct arrest. Their failure to disclose in other states went undetected for numerous renewal periods, creating a false sense of comfort, until the pharmacist and the nurse each applied for licenses in Oregon, with the Oregon Board of Pharmacy and the Oregon State Board of Nursing, and their failure to disclose was caught.

For whatever reason, an old incident that should have been disclosed in each case, but was not, and was never caught elsewhere, was caught in Oregon. I don’t know if this was due to constant improvements in search engines and data banks, or if the background checks in Oregon are more rigorous, but it matters not – if disclosure was required, and the failure to disclosure is caught, you have a problem.

Medical licensing Boards see the failure to disclose as a veracity problem, not a mistake, and oftentimes the failure to disclose is worse than the underlying problem that required disclosure in the first place. Do not make this mistake. Take proactive steps to correct your application before the mistake is discovered. Please know that once the mistake is caught by your licensing Board, it is no longer considered a mistake. You now have a larger problem.

Filing a complaint with your licensing board

Posted on November 3, 2015 by - Licensure

As a licensed physician, pharmacist, or nurse, it may one day become necessary to file a complaint with the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing, reporting the conduct of another licensed professional. We all take this aspect of our professional responsibility seriously. In a close-call case, we may prefer not to file the Board complaint, and in a bad case, the ramifications of filing the Board complaint can make the act of doing so seem overwhelming.

What to do?

In a close-call case, no one wants to file a Board complaint that need not be filed, or is otherwise unnecessary, and some worry that an unfounded complaint will backfire, and no one wants that either. In a bad case, especially when the complaint turns you into a witness and you will become part of the ensuing investigation, the weight of reporting is heavy. In either case, you will be uncomfortable, left to wonder has best to proceed.

Consult an Oregon licensure lawyer

In a close-call case, your licensure lawyer can call the Board, whether it be the Oregon Board of Pharmacy, the Oregon Medical Board, or the Oregon State Board of Nursing, and discuss whether the report needs to be made in the first place and, if so, how best to present it. An experienced licensure lawyer will have existing relationships with investigators and others at each of the licensing Boards and will know whom best to call. In many cases, it will not be necessary to disclose your name to during initial discussion. If it turns out that the report needs to be made, the ground will have been prepared and the expectation that the complaint be filed is “shifted” somewhat to your licensing Board. If the Board complaint later turns our to be unfounded, this additional care taken while making the Board complaint will serve you well later.

In a tough case, your licensure lawyer can shoulder the burden of writing the Board complaint (an email will be fine), sending it to your licensing Board, and then following up the Board answering any follow-up questions the Board might otherwise direct to you.This approach will life some of the weight from your shoulders, and also ensure that the complaint is presented in an arms length fashion, which may be quite helpful in some circumstances. In one case earlier this year involving a pharmacy drug loss, my report to the Board of Pharmacy on behalf of the pharmacists, was just the beginning – the start of an investigation by the Oregon Board of Pharmacy. In cases these, where the complaint will trigger an investigation that will involve you, it is highly recommended that your licensure lawyer be involved from the start anyway, providing just one more reason to consult a licensure lawyer.

A cautionary tale for Oregon retail pharmacists

Posted on November 2, 2015 by - Licensure

Corporate retail staffing decisions and the Oregon Board of Pharmacy

Twice this year, I have represented relatively new pharmacists practicing their profession in the hustle and bustle of two different national corporate retail pharmacy chains. In both cases, the pharmacist needed or requested staffing that corporate management did not allow, and in both cases the practice of pharmacy suffered, dispensing errors and/or counseling errors occurred, and complaints were filed with the Oregon Board of Pharmacy. Not surprisingly, in both cases, the pharmacist sought to defend against the Board complaint by explaining the staffing decisions imposed by corporate management, but be forewarned: That justification is not considered an extenuating circumstance by the Oregon Board of Pharmacy.

What you need to know

Please know that the Oregon Board of Pharmacy expects you to protect the practice of pharmacy, even when to do so is at odds with decisions by corporate managers. While I am of the opinion that the Oregon Board of Pharmacy could do a better job of getting this message out to all new pharmacists, this is what I have experienced while representing pharmacists before the Board of Pharmacy. Simply put, your ultimate professional responsibility is to your profession – the practice of safe pharmacy – not your employer. See, e.g., OAR 855-019-0200 (pharmacist’s standard of care); OAR 855-019-0200(1)-(7) (responsibilities of the pharmacist); OAR 855-041-1015(1) (pharmacist required to be present in the pharmacy to supervise the pharmacy).

The tension between protecting your Oregon pharmacist’s or abiding your corporate employer

If you are practicing in a corporate retail pharmacy, you are surrounded by a sea of commercial activity, and all of it, including the staffing levels in your your pharmacy, is managed by business types. At times, you may be the only licensed healthcare provider on the premises.Your professional training, experience, and responsibilities as an Oregon pharmacist make you unique in that setting, leaving you alone to protect the practice of pharmacy throughout the day. In other words, you are uniquely liable to the Oregon Board of Pharmacy. Never lose sight of that fact, because the Oregon Board of Pharmacy has little sympathy for a pharmacist that defers to corporate management if that deference compromises the practice of pharmacy.

Expectations of the Oregon Board of Pharmacy

The general concern of the Oregon Board of Pharmacy is to ensure patient safety, the competency of every pharmacist, and the security of the drug inventory. If corporate management places you in a predicament where either corporate managers will be unhappy, or the practice of pharmacy will be compromised, the Oregon Board of Pharmacy will tell you it is your professional obligation to protect the practice of pharmacy, not the employer’s wishes. This is true even if it is necessary to take extreme action to temporarily close the pharmacy until adequate staffing arrives to ensure the safe practice of pharmacy. If you haven’t the authority take such extreme action when necessary to ensure the safe practice of pharmacy, it may be advisable to call a licensure lawyer, or an inspector at the Board of Pharmacy, to gain the perspective or assistance. In the end, you will have protected the practice of pharmacy, which is what the Board of Pharmacy expects of you as a licensed pharmacist. You will also have protected your license to practice pharmacy.

Disclaimer

I am a licensure lawyer, not an employment law lawyer. An employment law lawyer might share very different observations with you, observations intended to protect your employment, not your Oregon pharmacist’s license. As a licensure lawyer, I am sharing what I have learned while representing pharmacists before the Oregon Board of Pharmacy. By sharing my observations here, I hope to help you protect your Oregon pharmacist’s license, while an employment law lawyer might provide very different observations intended to protect your employment. Indeed, this disclaimer reveals the very real tension occasionally faced by pharmacists while practicing in the large, corporate retail pharmacy chain stores.

The DEA’s “legitimate medical purpose” standard – Part II

Posted on October 6, 2015 by - DEA Prosecutions, Licensure

Conflating the criminal and civil standards when prosecuting doctors for prescription drug crimes

In a prior post, I suggested that DEA lawyers and drug diversion investigators, while fulfilling their responsibilities to “police” both civil and criminal violations of the CSA, blur the line between civil violations (the standard of care) and criminal violations involving prescription drug crimes by doctors (e.g., unlawful prescribing, unlawful dispensing, drug diversion, or prescribing without a legitimate medical purpose), thereby “criminalizing” what would otherwise be a civil violation. Today I will share one example off how the DEA lawyers and drug diversion investigators accomplish this feat, conflating the civil standard of care with the criminal conviction standard when attempting to prove a doctor committed a prescription drug crime.

First, a basic understanding of the prescription drug crime

To convict a doctor of a prescription drug crime under 21 U.S.C. § 841(a)(1), it is generally agreed that the government must prove (1) that the doctor prescribed or dispensed a controlled substance, (2) that he or she acted knowingly and intentionally, and (3) that he or she did so other than for a legitimate medical purpose and in the usual course of his or her professional practice. See, e.g., United States v. Norris, 780 F2d 1207, 1209 (5th Cir. 1986); citing, U.S. v. Rosen, 582 F2d 1032, 1033 (5th Cir. 1978). A lawyer defending doctors accused of prescription drug crimes must be familiar with these concepts.

It is important to know, however, that the Controlled Substances Act (CSA) – the statutory scheme passed by Congress – includes only the first two elements above. The third element,”legitimate medical purpose,” is rooted in an agency rule promulgated by the Drug Enforcement Administration (DEA). See 21 C.F.R. 1306.04(a). That Rule provides that a controlled substance can be dispensed by a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. 1306.04(a); Norris, 780 F2d 1207,1209. Thus, lawyers defending doctors accused of prescription drug crimes will also need to be familiar with the interplay between the statute (21 U.S.C. § 841(a)(1)), and the rule (21 C.F.R. 1306.04(a)). Similarly lawyers defending pharmacists accused of unlawful dispensing will also need to be familiar with the interplay between the statute (21 U.S.C. § 841(a)(1)), and the rule (21 C.F.R. 1306.04(a)) because the rule further states that “a corresponding responsibility rests with the pharmacist who fills the prescription.”

So what does the CSA actually say?

Under the CSA, a doctor commits a prescription drug crime when he or she (1) knowingly or intentionally (2) distribute or dispense a controlled substance unless “authorized” by the Act. See, 21 U.S.C. § 841(a). Authorization is obtained by “registering” with the Attorney General. See, 21 U.S.C. § 822(a)(2). Persons registered with the Attorney General are authorized to possess, manufacture, distribute, or dispense controlled substances to the extent authorized by their registration. See, 21 U .S.C. § 822 (b). Physicians licensed by a state and registered with the Attorney General are “practitioners” and, as such, they are authorized to dispense controlled substances (see, 21 U.S.C. § 829(a)&(b)) in “the course of [their] professional practice.” In other words, a doctor commits a prescription drug crime when he or she (1) knowingly or intentionally, (2) distributes or dispenses a controlled substance, (3) outside the course of professional practice. There is no requirement in the statutory scheme of a “legitimate medical purpose.” Rather, that requirement is added by agency rule. See 21 C.F.R. 1306.04(a).

What’s the problem?

The problem arises when the DEA attorneys and drug diversion investigators focus on the language of the rule – “legitimate medical purpose” – to the exclusion of the three statutory elements of the crime discussed above (i.e., the knowing or intentional distribution of a controlled substance outside the course of professional practice). When this happens, the legal inquiry becomes too focused on the civil standard of care, not the elements of the prescription drug crime. Lawyers familiar with defending doctors charged with prescription drug crimes know this. I am aware of one recent case in which the physician was indicted for prescribing outside the course of professional practice and, remarkably, the indictment omitted any reference to the “knowing or intentional” element of the crime. This first crucial element of the crime, mandated by the CSA, was not included until a later, superseding indictment. Amazing.

Why does it matter?

The first element of a prescription drug crime – knowing or intentional – is hugely important because it makes clear that the crime of unlawful prescribing or dispensing is a “specific intent” crime. The crime includes a mens rea component, meaning that the prescribing physician or dispensing pharmacist intended to commit a prescription drug crime by writing or dispensing a prescription outside the course of professional practice. The specific intent requirement means that the presence of ordinary professional negligence (professional negligence or malpractice) is not enough to convict. More is needed. The problem occurs when DEA attorneys and drug diversion investigators focus on the civil standard of care, as if a violation of this civil standard is enough to prove a prescription drug crime, which can be very misleading to a jury.

Conclusion

This is but one example of the misapplication of the law when prosecuting doctors for prescription drug crimes. There are more examples, and constant vigilance is required. The legal challenge for lawyers defending against the DEA is to prevent this type of inquiry before conviction, or to reverse it on appeal after conviction, and it is challenging work with much at stake.

The DEA’s “legitimate medical purpose” standard – Part I

Posted on October 4, 2015 by - DEA Prosecutions, Licensure

Committing prescription drug crimes with your DEA “License”

Many physicians, all pharmacies, and some nurses, have DEA “Registrations.” Practitioners will often refer to their DEA Registration as a “license,” or simply, “my DEA.” The DEA Registration grants “authority” to the Registrant under the Controlled Substances Act (CSA) to possess, prescribe, and/or dispense controlled substances, to the extent authorized by the Registration.

If you possess a DEA Registration, you play an integral part in controlling the Nation’s drug supply, a “closed system” of inventory wherein every controlled drug is tracked from the point of manufacture to the end consumer, a patient. As such, DEA Registrants are subject to much scrutiny under the CSA, a complex legal scheme that keeps our federal trial and appellate courts quite busy.

A civil or criminal investigation – which is it?

When DEA lawyers and agents investigate physicians, pharmacists and nurses under the CSA, they may pursue the DEA Registrant civilly or criminally. The DEA has a choice. When the DEA pursues a Registrant civilly, the process can feel similar to a licensure proceeding before a state licensing board. When, however, the DEA pursues a Registrant criminally – for prescription drug crimes – it will feel like a criminal prosecution, with the full weight of the government bearing down.

Are the lines blurred between the civil and criminal standards?

I have successfully argued that DEA attorneys and agents, while fulfilling their responsibilities to “police” both civil and criminal violations of the CSA, have blurred the line between civil violations (the standard of care) and criminal violations involving prescription drug crimes (i.e., unlawful prescribing, unlawful dispensing, drug diversion, or prescribing without a legitimate medical purpose), thereby “criminalizing” what would otherwise be, at best, a civil violation, see US v. Chube II, 538 F3d 693 (7th Cir. 2008), or no violation at all. See Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006).

Application of the legitimate medical purpose standard in civil and criminal proceedings

If, while pursuing civil violations, the DEA’s attorneys and agents investigate a doctor for prescribing without a legitimate medical purpose, and they equate a legitimate medical purpose with the civil standard of care, I am not sure what difference it makes. This is because on the “civil side” of the DEA, the DEA will enforce the standard of care, much like a state licensing board. If the DEA wants to call it by another name – i.e., legitimate medical purpose – I do not see how it matters, as the out come will likely be the same.

If, however, the DEA attorneys and agents are investigating a doctor for a prescription drug crime, and the DEA equates “prescribing without a legitimate medical purpose” with the civil standard of care, then we have a problem – the doctor’s “criminal” conduct will now be measured against the civil negligence standard, a lower legal standard, making it easier for the government to prove wrong doing. This is a trap for pharmacists too, because the so-called “legitimate medical purpose” rule states that “a corresponding responsibility rests with the pharmacist who fills the prescription.” See 21 CFR §1306.04(a) (legitimate medical purpose rule). Thus, whether you are a prescribing physician or a dispensing pharmacist, never forget that a violation of the civil standard of care when prescribing or dispensing controlled drugs is professional negligence, or malpractice; it should not be, without more, viewed as an intentional drug crime, which requires more proof, i.e., proof of intentional wrong doing.

Further discussion on this subject

In a subsequent post, I will shed light on one of the ways DEA attorneys and agents have accomplished this blurring of the lines, which, in my experience, “waters down” the burden of proof required to convict physicians and pharmacists of prescription drug crimes, and also makes it easier to find the “relevant conduct” necessary to lengthen a prison sentence under the federal sentencing guidelines.

How to shave months off the time it takes to conclude an appeal – Part II

Posted on October 2, 2015 by - Appellate

In my last post, I discussed the opportunities that will allow the smart appellate litigator to shave months off the time necessary to conclude a basic appeal, from start to finish, in the Oregon Court of Appeals. In this post, I discuss a few more time-consuming events that are less common, but may still be anticipated as part of a larger, time-saving strategy, as follows:

Consolidation of two appeals

Occasionally, the litigants may be litigating two cases, having similar issues, that are going up on appeal separately. Or, there may be an appeal from a Limited Judgment entered before trial, and then a second appeal from the General Judgment entered after trial. In either case, it is often desirable for reasons of “judicial economy,” to consolidate the appeals, to save time.

Sometimes, when two appeals are consolidated, they are simply assigned the same briefing schedule and oral argument schedule. In other words, the two appeals “travel together.” Other times, the two appeals are in fact consolidated into one appeal, sharing common briefing, and creating an appellant and cross-appellant situation. Either way, the consolidation of two appeals requires the filing of a motion (which requires experienced legal judgment), and an order by the Court of Appeals.

One way to save more time is to file a joint motion to consolidate (i.e., a motion by both parties, without objection from any party). While it may take time to negotiate the terms of the joint motion, a joint motion eliminates any dispute between the parties that would requiring resolution by the Court of Appeals, thus saving time-to-ruling, although a joint motion may still be denied.

Another way to save still time, is to file the joint motion to consolidate early, while preparation of the transcript and/or opening brief is underway. This approach means that the time consumed by the Court of Appeals to decide the motion will run concurrently with other necessary work, so the motion does not require any additional time. Conversely, if you really want to slow things down, wait until all the work is done before filing the motion to consolidate. The motion may still be granted, but now everybody is waiting for the motion to be decided by the Court of Appeals, before the next step may be taken, for example, scheduling oral argument.

Correcting the trial court record

Throughout the course of litigation, each party maintains a copy of the trial court’s file and, on appeal, each party relies upon their file to get their work done, rarely knowing or suspecting that the trial court’s file – which is the all important record on appeal – is incomplete. If the trial court’s file is incomplete, the record on appeal is incomplete. If this problem is present, it is usually not discovered until very late in the process, and the time necessary to correct the trial court’s file may take a month or two, or even longer, if the parties dispute what is necessary or permissible to correct the trial court’s file. Although an incomplete trial court file is an uncommon occurrence, if you would rather be safe than sorry, this potential delay can be avoided by taking a trip to the courthouse early on, to inspect the trial court’s file. This way, any necessary corrections can be made early on, concurrent with other work, saving much time later on.

Conclusion

As you can see from the above discussion, it is possible to anticipate even the unusual events that may delay an appeal by several months, and to eliminate those occurrences before the delay is unavoidable. It is not always easy to do, however, and expediting an appeal may be counter intuitive. We have all become accustomed to waiting for deadlines, and following the prescribed or expected path. Your appeals lawyer will need to be both experienced and proactive, but in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

How to shave months off the time it takes to conclude an appeal – Part I

Posted on September 30, 2015 by - Appellate

In a prior post, I discussed the time it takes, from start to finish, to conclude an appeal, and it can be a lengthy process. Today I will discuss the many opportunities a skilled appeals lawyer may seize to expedite an appeal, saving a client much time and therefore some expense.

For the purpose of this discussion, I will assume the role the appellant taking an appeal to the Oregon Court of Appeals. I do this for two reasons. First, the Oregon Court of Appeals is the busiest appellate court in Oregon and, second, the appellant is responsible for most of the work on appeal, and is therefore afforded the greatest number of opportunities to expedite the appeal. Some of the same opportunities will apply equally well, however, to the respondent on appeal.

The opportunities to expedite an appeal in the Oregon Court of Appeals, are as follows:

Entry of the judgment

This first opportunity to save time presents itself before the appeal is even filed. Although there are exceptions (not discussed here), most appeals are taken from a “judgment,” after it is “entered” in the registry. It is surprising, however, how long the parties and the trial court might take to prepare, negotiate, litigate, sign, file, and enter the judgment. In some cases, by nudging this process along, months can be saved by having the judgment prepared, signed, filed, and entered promptly, so that you can file your notice of appeal quickly after your loss in the trial court.

Filing the appeal

An appellant is allowed sufficient time, often 30 days (but not always), to prepare and file a notice of appeal, but there is no requirement to wait that long. By filing the notice of appeal early, you trigger the next event, and can easily shave three weeks off the time it takes to eventually conclude the appeal.

Preparation and filing of the trial court’s transcript of proceedings

After the notice of appeal is filed, the Court of Appeals will assign a court-approved transcriptionist, to convert the audio recording into a transcript of the trial court proceedings. Once the transcriptionist is notified by the Court of Appeals that he or she has been assigned the work, the transcriptionist will then contact the lawyer for the appellant, to provide an estimate of the cost, and to request pre-payment. At the same time, the transcriptionist will add this new assignment to his or her backlog of work, usually in the order received. If the transcriptionist needs more time, the transcriptionist can file his or her own motion in the Court of Appeals seeking an extension of time, and such motions are routinely granted by the Court. As you might guess, it may take several months or longer before the transcript is prepared and filed, especially if nobody is paying attention.

It is not necessary, however, to accept as fate this slow process. If your circumstances require otherwise, months can be saved by having the transcript prepared as soon as you know you will be appealing. Just be sure that you choose a court-certified transcriptionist and that you include his or her name in your notice of appeal, and further explain in your notice of appeal that the transcribing work is done, or already underway. This way, the Transcript Coordinator will know to assign the work to the transcriptionist you have already hired. In those cases where I want to save even more time, I will call a list of court-certified transcriptionists that I maintain in my office, to determine which transcriptionist is most available, and how soon he or she can get the work done.

Correction of the transcript

After the transcript is served and filed, there is a short period of time (14 days) to file a motion in the trial court to correct any errors in the transcript, and there are always errors in a transcript. Most of the time, however, the errors are insignificant. It is my practice never to file a motion to correct a transcript merely to fix typographical errors, misspellings, or other insignificant errors, if I can simply correct the error on appeal but using editorial insertions or references to other evidence, unless the typographical error, misspelling, or other thing goes to the heart of something that is important or dispositive on appeal.

If there is a risk of confusion on a key issue, or the error changes and important fact that you need on appeal, by all means, file the motion to correct the transcript. But remember, although the 14 day period to correct a transcript is short, the motion you file in the trial court may take a month, or several months, to resolve, before your appeal is back on track.

By avoiding an unnecessary motion to correct a transcript, you will save a month or more, not to mention the expense of the work. And remember, you cannot file your opening brief on appeal until the transcript is filed and “settled.” Settling the transcript requires the expiration of the 14 period to correct the transcript or, if a motion to correct has been filed, the entry of an order by the trial court correcting the transcript.

Preparation and filing of the opening brief on appeal

Although you are allowed 49 days from the settling of the transcript to file your opening brief, there is no requirement that you wait 49 days to file your opening brief. If you have followed my recommendations above, you will have obtained the transcript early, which means you can prepare your opening brief early too, and then file it soon (within days) after the transcript has settled. Once the opening brief is filed, the next deadline is triggered, for the other side to file its answering brief.

Preparation and filing of the reply brief on appeal

In many appeals, the appellant is permitted to file a reply brief. Other times, a reply brief may be optional, by leave (permission) of the Court of Appeals. Obviously, you cannot prepare the reply brief until you have the answering brief in hand, but if you know the answering brief is coming, you can reserve time on your calendar to do the work immediately, in order to get the reply brief filed early too. By planning ahead, you can save a month or longer in getting the reply brief filed.

Conclusion

The work itemized above is necessary for a basic appeal in the Oregon Court of Appeals. As you can see from the above discussion, it is possible to shave significant time off an appeal. It is not always easy to do, however. Your appeals lawyer will need to be both experienced and proactive. Expediting an appeal may be counter intuitive, as we have all become accustomed to waiting for deadlines, and following the prescribed or expected path. But in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

In a future post, I will discuss other time consuming events that may, but do not always, present themselves on appeal. By anticipating these additional time consuming events, still more time may be shaved off the time it takes to conclude an appeal, from start to finish.

Should I waive my right to a hearing with the Oregon State Board of Nursing?

Posted on September 28, 2015 by - Licensure

The answer to this common question is that most of the time nurses will eventually waive their right to a hearing before the Oregon Board of Nursing, as part of a larger settlement agreement. This does not mean, however, that your decision to settle your case should be made lightly, or without the advice of skilled Oregon licensure counsel.

The decision to waive your right to a hearing is one of the more important decisions you will make. If professional discipline is imposed, it will have lasting consequences. Your right to a hearing is your safety net against an unfair resolution. Your right to a hearing preserves your opportunity to have your case decided by an neutral and independent Administrative law Judge (ALJ). And finally, because both sides generally prefer to avoid a hearing, your right to a hearing is also one of your bargaining chips.

This point is key: waiving your right to a hearing is part of a settlement, but you should not waive any of your rights until you and your Oregon licensure lawyer are satisfied that you have reached a fair settlement. If you are facing an investigation by the Oregon Board of Nursing, consult an Oregon licensure lawyer immediately.