Going before licensing board

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Our work for clients includes representation on a broad range of licensure matters before virtually every regulatory agency. If you are being accused of failure to comply with professional standards, our attorneys are prepared to knowledgeably, efficiently and skillfully protect your rights and interests. We have effectively represented our professional clients in litigation before licensing boards on dozens of matters.

Our firm has extensive experience representing professionals in licensing matters and proceedings before administrative and regulatory boards. First is the Intake Stage. During this first stage, complaints are considered informal, received by the DLSC and processed. Upon intake of these informal complaints, the division is then administratively tasked with screening the informal complaint. Per the applicable administrative code, considerations in screening include: 1 whether the person complained against is licensed; 2 whether the violation alleged is a fee dispute; 3 whether the matter alleged, if taken as a whole, is trivial; and 4 whether the matter alleged is a violation of any statute, rule or standard of practice.

Our clients receive complaints ranging from the most serious of alleged care violations, such as operating on the wrong limb, to the most mundane, like waiting 15 extra minutes for the scheduled appointment.

As such, it is unclear the extent of what screening, if any, truly goes into the estimated 3, complaints filed each year. Next, copies of the complaint and related information are subsequently sent to the licensee for an opportunity to respond. When providing the complaint and related information, the licensee will receive a boiler-plate email from a DLSC representative.

On its face, this notice can be intimidating. Failure to respond may result in disciplinary action. Understandably, these matter-of-factly stated broad stroke requests can seem overwhelming, daunting, and even career ending.

Thus, because this is a legal process, working with an experienced advocate upon receiving notice of a complaint is crucial. Sloppy or hurriedly drafted responses may inadvertently expand the scope of the probe beyond the limited issues identified in the complaint.

After the licensee submits a response, the next step in the case handling process is the Investigation Stage. Investigative staff are tasked with gathering the necessary information and to make contact with identified witnesses as needed. Your response and accompanying materials submitted are included in the accumulation and consideration of information.

On issues requiring professional expertise, a Board member is consulted. The results of the investigation are then provided to and discussed with the case advisor. The Investigation Stage occurs entirely behind closed doors. Because of pride, cost concerns, professional rivalry, or a belief that they can handle the matter themselves, physicians often do not consult legal counsel until significant damage has been done to their professional reputations.

Knowing how to practice medicine and being superior doctors do not mean physicians are equipped to defend themselves in a licensing board proceeding, where legal rules of procedure and evidence apply. In all but the simplest of cases, it is far better to have someone else defend the physician and if necessary criticize the complainant than it is to have the doctor—who is the target of the complaint—be his or her only advocate.

Action Step Physicians who know an attorney in their community who has successfully handled these types of cases should call that attorney immediately. If not, they should contact colleagues and physician organizations for referrals. Next, physicians should promptly provide counsel with all pertinent information and documents and any known grounds for defending the allegations.

They should not omit any important or potentially damaging information because they hope it will not come out. They should include all facts that may be relevant, so their attorney is fully informed and not unpleasantly surprised by damaging facts when it is too late to minimize their effect.

Physicians should consider asking their attorney to retain a consulting expert. Doing so will allow the physicians to get an objective opinion after a full discussion of the matter protected by the attorney-client privilege or work product doctrine. When a complaint is filed, most physicians are not anxious to broadcast that fact. Especially if the charges include serious or embarrassing allegations, doctors may avoid notifying even those who may help them. Doing so can be a serious mistake for several reasons.

First, under most malpractice insurance policies, physicians have a duty to notify the insurer of any claim or potential claim that might require coverage.

Second, unless the physician is a sole practitioner, he or she often is required by contract, bylaws, or organization policy to notify a risk manager or someone within the organization about the claim, no matter how embarrassing or meritless the charge. Moreover, the malpractice insurer or entity with which the physician is affiliated may provide or pay for assistance, including experienced counsel to represent the physician before the board.

Action Step Physicians should review their malpractice insurance policy. They should also determine whether they have a duty to notify the insurer, and whether there is coverage for board complaints. If so, they should notify their carrier of the complaint as soon as possible.

They should also notify appropriate risk management personnel where they practice and provide pertinent documents.

In addition, they should request any legal and other assistance that may be available under the policy, contract, or organization bylaws. Trying to dissuade the complaining party from pursuing the complaint is a tactic that almost never works. Worse, it can lead to damaging evidence being admitted against the physician. And the physician may be portrayed as having tried to intimidate the complaining party. When this does not occur, the nurse licensee may be disciplined by the state board of nursing.

The government, and any of its entities, is powerful, particularly against an individual. For example, the board may be required to have a stenographer present during any formal hearing when it decides this approach is the one it wants to take with the allegations made against the nurse licensee. Likewise, the board may be required to utilize hearing officers that either work for the board or who do not work for the board but contract with it to hear board cases.

The investigators will also try to obtain a statement from the nurse licensee. It is important to note that the nurse licensee has a right not to speak to the investigative team. The only obligation the nurse licensee has when the board of nursing is involved is to meet with the board or be present at a formal hearing. Many states have an option for the nurse and the board to resolve a complaint brought against the nurse without recourse to a formal hearing.