Tag: board of medicine

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 the 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 explanation (or defense) but, without the benefit of experienced legal advice, he failed to present that explanation 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.

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

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.

I just received a notice of proposed discipline – what does this mean?

If you have received a notice of proposed disciplinary action, it most likely means that your licensing board, whether it be the Oregon Medical Board, the Oregon Board of Pharmacy, or the Oregon State Board of Nursing (or any of the other state licensing boards in Oregon), has concluded its investigation, reached certain conclusions about your practice standards, and is now proposing to discipline you for one or more deficiencies, by imposing one or more sanctions upon you.

The range of sanctions

Sanctions include being reprimanded; having your license to practice medicine, pharmacy, or nursing temporarily suspended, indefinitely suspended, or permanently suspended; or having your license to practice medicine, pharmacy, or nursing permanently revoked. Sanctions further include monetary fines, continuing education, recurrent training, the imposition of a mentor and monitoring, and periods of probation (five years is not uncommon). One or more sanctions, in combination, may be imposed by your licensing board, as the board sees fit.

Illicit drug use; impairment; fitness to practice your profession

If illicit drug use or abuse is involved, then you should further expect to complete an assessment and the drug treatment necessary to restore your health. If you are impaired, or your fitness to practice as a physician, pharmacist, or nurse is at issue, these assessments may be extensive and expensive, and may require travel to an approved facility.

The board’s concerns

The general concern of all healthcare licensing boards is to ensure patient safety and the competency of the individual practitioner. If a pharmacy is involved, the board will further want to ensure the security of the drug inventory.

What are the next steps?

If you haven’t been represented by licensure counsel thus far, the next step is to retain legal counsel. Too many health care providers wait to obtain legal advice until shortly before or after being interviewed by field investigators or licensing boards, or worse, after receiving written findings and proposed sanctions, i.e., a notice of proposed disciplinary action. At this point, your licensing board has reached conclusions about your practice, and at this late date, your opportunity to participate and influence proposed findings and sanctions has been greatly diminished, but there is still important work to do. The next step is to negotiate a settlement, or to proceed to an administrative hearing. No matter what you do, you need legal counsel. You have waited too long if you have not retained legal counsel at this point.