Tag: licensure lawyer

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

Posted on May 21, 2016 by - Licensure

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 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 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

Posted on May 15, 2016 by - Licensure

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?

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.

Oregon State Board of Nursing complaints: A common question

Posted on September 23, 2015 by - Licensure

What should I do when my employer files a complaint with the Oregon State Board of Nursing?

As you will see from this discussion, it pays to obtain competent licensure counsel and take early action. In four cases this year, I was hired soon after the nurse (my client) was informed that his or her hospital intended to file a complaint with the Oregon State Board of Nursing (OSBN).

In the first two cases, the hospital made its decision and terminated the nurse all in the span of a few days. The process was essentially a well-orchestrated and documented exit interview, leaving little for us to do, other than wait for the expected notice from the Oregon State Board of Nursing that the compliant had been received, and start our defense then.

In the third and fourth cases, however, the hospital provided the nurse with 14 days advance notice of the hospital’s plan to file a complaint with the Oregon State Board of Nursing. In these two cases, the hospital was required by a labor contract to allow the nurse 14 days to provide an “optional response,” which allowed us to start our work immediately, with the hospital.

What happened in the four cases?

The first two cases were fully resolved in the nurse’s favor. At the conclusion of both interviews, the investigators for the Board of Nursing evidently agreed with the nurse, not the hospital, and the Board of Nursing took no action.

In the third case, the hospital withdrew its threat of termination and of filing a complaint with the Oregon State Board of Nursing. The hospital also made internal changes as a result of the nurse’s response (our response) to the hospital’s threat of termination and filing a complaint with the Board of Nursing. This was an excellent result for the nurse and the Board of Nursing was never involved, as a complaint was never filed.

At this point it time, the fourth case is too new to my office to predict or know the outcome, but as you can see, these cases are defensible. In the first three cases, the hospital was mistaken, and the nurse had it right.

What you need to know

All four cases involved a complicated mix of practice issues, legal issues, management issues, and sometimes “personalities.” In all four cases, the hospital was acting through its Human Resources Department (HR), which, if you do not know, is essentially an in-house legal department comprised of management and lawyers. When HR is involved, it may mean that a small team of individuals has already organized and is working against you. If this scenario sounds familiar, you are advised to hire competent licensure counsel immediately. The nurse is often right and taking early action works!