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In Florida You Have Fifth Amendment Rights in a Department of Health Investigation of Your License

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

If you are contacted by a Florida Department of Health investigator, did you know that you are not required to make a statement or give any information that can be used against you?  If you are being investigated you have a right to refuse to speak with an investigator pursuant to the Fifth Amendment of the U.S. Constitution and the equivalent rights given by the Florida Constitution, Article 1, Section 9.  However, because the Miranda decision does not apply to administrative proceedings, including licensure investigations, the DOH investigator does not have to inform you of this.

In some states other than Florida, the state’s law is such that a nurse, physician, dentist or other licensed health care professional is required to “cooperate” with the investigation, even though he or she may be punished or lose their license as a result.  THIS IS NOT THE CASE IN FLORIDA.

Florida Licensing Investigations Are Considered to Be “Penal” or “Quasi-criminal” in Nature.

Florida licensing investigations are considered to be “penal” or “quasi-criminal” in nature.  In Florida, a professional’s license is considered to be a property right.  So you also have the constitutional right not to be deprived of it without due process of law.  Due Process of law is guaranteed not only by the Florida and U.S. constitutional provisions cited above, but also by the Fourteenth Amendment of the U.S. ConstitutionDue process of law includes the right to be represented by an attorney in any proceedings that might be initiated that may result in your losing your license.

In Florida, a long history of legal cases has resulted in the common law rule that administrative proceedings that may result in loss of a license must afford all of the protections that a criminal defendant would have in a criminal case.

Case Law in Florida.

In a 2004 case involving the Florida Department of Health, the Florida First District Court of Appeal stated:

Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002);  Elmariah v. Dep’t of Prof. Reg., Board of Med., 574 So. 2d 164 (Fla. 1st DCA 1990).

Cone v. Dep’t of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

The Florida Supreme Court confirmed that a licensee could assert a Fifth Amendment right in administrative proceedings in the 1973 case of State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973).

In Vining a real estate broker was charged by the Florida Real Estate Commission of violating the Real Estate License Law.  Id. at 488.  The broker filed a sworn answer, as he was required to do under Florida Statute Section 475.30(1).  Id.  The broker later argued that the Florida statute violated his right against self-incrimination as guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida Constitution.  Id.

The Florida Supreme Court agreed, holding that “the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.”  Id. at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967);  Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)).  More recently, courts have reaffirmed that Vining remains good law in Florida.  See Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993);  Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992).

In Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993), for example, the Court of Appeal reiterated the ability of a defendant to claim the Fifth Amendment privilege in an administrative proceeding.  Best Pool involved a pool owner filing actions for negligence and breach of contract against a pool maintenance contractor and its president.  The circuit court required the president to answer questions at his deposition about his certifying to the county, in an application for license, that the contractor had liability insurance.  The Court of Appeal ruled that the president was allowed to assert his Fifth Amendment privilege with regard to questions on this issue.  The court stated in Best Pool: “requiring Kassover, the president, to answer these questions does violate his right against self incrimination, which applies not only to criminal matters but also administrative proceedings such as licensing.  Id. at 66.

There are many other cases which have held the same.

You Must Be Extremely Cautious When Dealing with a DOH Investigator or Any Investigator.

If you receive notice that a DOH disciplinary investigation has been opened against you, you may not even realize it or understand how serious the consequences may be.  The notice comes in the form of a simple letter or, more often nowadays, a phone call, followed by a letter.  The letter will be on Florida Department of Health letterhead and will, in most cases,  be signed by a person whose job title is “Medical Malpractice Investigator,” “Quality Assurance Investigator” or some other title that might throw you off.

If you think you are giving information to be used in connection with a true quality assurance matter, such as would be confidential and privileged in a hospital or health institution, think again.  This is an investigation that could result in your having to pay thousands of dollars in fines, thousands of dollars in investigative costs and suspension or loss of your license.  Worse yet are the other consequences that having discipline on your professional license will bring, including difficulty in obtaining employment, reports being made to national data banks, etc.  Please see some of the other articles we have on our blog and on our website about all of the unforeseen consequences of discipline on your license.

Have You Been Told the Investigation Is Not Aimed at You?  Watch Out!

Even if the investigator attempts to ensure you that the investigation is not aimed at you, watch out!  It may not be aimed at you today, but it may be aimed at you tomorrow.  Additionally, even if the particular investigation that you are being questioned about is not directed against you, there may be another investigation that has been opened against you.  Your statement can and will be sued against you in that other investigation.

I was told by a DOH investigator one time that my clients (who were a director of nursing (DON), assistant director of nursing (ADON), an administrator and a medical director) were not being investigated, but that another health professional was.  My clients cooperated and gave statements for use in the investigation of the other person.  A short time later, additional investigations were opened against all of them, too.  Fortunately we eventually had all of the charges against all of them dismissed.  But I have not trusted investigators since then.

Don’t Wait Until it is Too Late; Consult with a Health Law Attorney Experienced in Representing Health Professionals Now.

The lawyers of The Health Law Firm routinely represent nurses, ARNPs, CRNAs, physicians, dentists, pharmacists, psychologists, mental health counselors, social workers, massage therapists, medical groups, clinics, pharmacists, pharmacies, home health agencies, nursing homes, assisted living facilities, and other healthcare providers in licensing investigations, regulatory matters, in board actions and in administrative hearings.  Call now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.  This article is for informational purposes only; it is not legal advice.

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Nurses: Advanced Practice May Mean Advanced Legal Issues

From George Indest’s Nursing Law Manual

The advanced nurse is a registered nurse (RN) who has completed some form of advanced nursing education and training.  Two types of advanced nurses are the advanced registered nurse practitioner (ARNP) and the certified nurse specialist.  In Florida, there are three types of certified nurse specialists: certified registered nurse anesthetists, certified nurse midwives, and nurse practitioners.  The potential risk of liability for an advanced nurse is as real as the risks for any other nurse.  In addition to all of the legal issues that a registered nurse is faced with, the advanced nurse is susceptible to even more legal issues.

Advanced nurses are held to higher standards of care than RNs or licensed practical nurses (LPNs) because of the higher degree of education and training that an advanced nurse is required undergo.  Advanced nurses are required to meet further certification requirements in order to become licensed.  The additional certification requirements were established because advanced nurses have a much broader scope of practice than RNs or LPNs.

An advanced nurse is held to all of the same duties and standards as a RN, as well as additional duties that are placed on the advanced nurse because of advanced training.  A failure to uphold the duties of a nurse can lead to the same consequences that a registered nurse could face, including action being taken by the Board of Nursing against the nurses license.

Advanced Registered Nurse Practioner (ARNP)

In Florida, an advanced registered nurse practitioner (ARNP) can only perform medical acts of diagnosis, treatment and operation under the supervision of a Florida-licensed medical doctor, osteopathic physician, or dentist.

The Board of Nursing, has established rules, pursuant to Florida Statutes, which regulate the requirements for a protocol between a physician or a dentist and an ARNP.  The protocol must be in writing and signed by both the ARNP and the physician or dentist, showing a mutual agreement between the parties.  The protocol must also include a description of the duties of the ARNP;  a description of the duties of the physician or dentist;  the management areas for which the ARNP is responsible, including the conditions for which therapies may be initiated and the treatments that may be initiated by the ARNP, depending on patient condition and judgment of the ARNP;  and the drug therapies that the ARNP may prescribe, initiate, monitor, alter, or order.  The protocol must include a provision for annual review by the parties which are privy to the protocol

In addition, the original protocol must be submitted to the Board within thirty days of the renewal of the ARNP’s license.  A copy of the protocol and a copy of the notice required by Section 458.348(1), Florida Statutes, shall be kept at the site of practice of each party to the protocol.  Any alterations to the protocol or amendments should be signed by the ARNP and the physician, or dentists and filed with the Board within 30 days of the alteration to be kept in the Department of Health for filing purposes only.  Specific conditions and a procedure for identifying those conditions that require direct evaluation or specific consultation by the physician or dentist must be contained within the protocol.

Certified Registered Nurse Anesthetists (CRNA)

Administration of anesthesia by a certified registered nurse anesthetists requires special training and certification.  Oversight and availability of an anesthesiologist is required by most organizations.  The major risks for registered nurse anesthetists include the improper placement of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

Nurse Practitioner (NP)

A nurse practitioner, NP, is a registered nurse who has completed the necessary education to engage in primary health care decision making.  A physician may not delegate a task to a NP when regulations specify that the physician must perform it personally or when the delegation is prohibited by state law or by an organizations own policies.  A NP who practices outside of her scope of practice can be sanctioned by the Department of Health and if an injury occurs to a patient that NP can be civilly liable to the patient.

Certified Nurse Midwives (CNM)

Nurse midwives provide comprehensive prenatal care including delivery for patients who are at low risk for complications.  Nurse midwives manage normal prenatal, intrapartum and postnatal care.  In addition, nurse midwives will care for newborns as long as there are no complications.  Nurse midwives also provide primary care for women’s issues from puberty to post menopause.  The standard of care for a certified nurse midwife is that of a reasonably prudent certified nurse midwife engaged in the practice obstetrics and gynecology.

DEPARTMENT OF HEALTH (DOH) INVESTIGATION

One of the biggest mistakes an advanced nurse makes when being investigated by the Department of Health, DOH, is failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation process.  If the advanced nurse does not make an objection to the DOH investigators request for a copy of a patient’s medical record, he or she is required to forward the medical record to the investigator.  A failure to comply with this can lead to further disciplinary action against a nurse’s license.
For more information about nursing law, or to read more from the Nursing Law Manual, visit www.TheHealthLawFirm.com.