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Doctor or Nurse, Please, Please, Please: Talk to an Attorney Before You Talk to an Investigator

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists  throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators.  In Florida, you do not have any duty to cooperate with any investigator who is investigating you.  This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators“), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Let me state this as succinctly and clearly as possible.  If you are being investigated, you will not be better off making a statement.  You will not be better off explaining your side of the story.  The investigator is not your friend.  The investigator is not on your side.  All you are doing is falling for a trick and helping the government to make a case against you.

You have a right under the U.S. Constitution to not make any statement that may be used against you.  This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out.  However, in a professional licensing case or other administrative case, it may be too late to avoid the damage.  You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement.  However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this.  You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.”  This can be fatal to your defense and fatal to your license.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense.  It may have other witnesses (who may not be around at the time of any hearing or trial).  It may have a lot of physical evidence or documents.  But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this.  You would be surprised at how many health professionals believe that they can just talk their way out of the situation;  in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession.  This is what they do full time, every day.  And they are very good at it.  They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.”  They will not be convinced by any excuses you make.  They do not have to be. They will not be the ones making the final decision against you.  Theirs is the job of putting together the case against you.  You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc.  It will not work.  You will merely be giving them enough rope to hang you with.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Do not believe for a second that you are smarter than the investigator.  Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege.  If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either.  Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator.  In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act.  This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time.  They are usually better at detecting lies than a polygraph expert is.  Furthermore, in most cases, you will be the very last person to be interviewed.  Therefore, they will already know just about everything that can be used against you.  If your statement contradicts in any way what others have told them, they will know you are the one who is lying.  However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

It is much better to make no statement at all.  Blame it on your attorney.  Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time.  “Speak to my attorney.”  “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.”  “I will have my lawyer contact you.”  “I cannot say anything until I talk to my lawyer.”  “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney.  What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?”  Please don’t fall for this trick, either.  This is America.  Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them.  There is a good reason why they do this.

Far too often the health professional only calls us after he has given a statement.  This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements.  Do not make either.  Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test.  Are you smart enough to follow this guidance and avoid this type of mistake?

For more information about investigations and other legal matters, visit www.TheHealthLawFirm.com.

Florida Doctor Arrested for Drug Sales and Other Criminal Charges

Drug trafficking charges against a medical doctor are not a new concept, especially in Florida. Recent pill mill busts throughout the state have resulted in an omnipresent DEA, always on the lookout for illegal drug sales by pharmacies, pharmacists, pain management clinics and physicians. However, the recent arrest of a Central Florida doctor extends beyond the run of the mill “pill mill” bust, as the accusations in this case involve sex with a minor and delivering a controlled substance to a minor.

According to Florida Today, this Central Florida doctor was arrested Tuesday following a raid by the Florida Department of Law Enforcement. This is his second arrest after he was charged with possession of marijuana and drug paraphernalia in August.

Tuesday’s arrest resulted from evidence of the doctor’s sexual relationship with a high school student. The doctor was arrested in 2009 after being caught during a traffic stop with bags of marijuana in his car and allegedly having a sexual relationship with the 16-year-old passenger. Although charges were not filed after the girl recanted her evidence and claimed the marijuana was hers, that didn’t put an end to a steady stream of younger girls going into the clinic. According to residents of the area surrounding the clinic, girls were frequently seen going to see the doctor dressed in revealing attire. Aside from teenage patients, residents reported often seeing a line out to the street for people waiting to get into the clinic, a possible indicator of drug trafficking.

Although his medical license has been suspended, this Florida doctor has yet to receive broader drug trafficking charges, despite his huge prescription distribution numbers. According to the Florida Department of Law Enforcement, this doctor prescribed 250,000 oxycodone pills in the first eight months of 2011. Compared to the entire state of California, which had 300,000 oxycodone prescriptions in the last six months of 2010, it is evident that this Florida doctor had a major painkiller operation. The Florida Department of Law Enforcement is calling him one of the worst offenders in the state of Florida. Upon further investigation, this doctor and anyone who may have assisted him in the drug trafficking of oxycodone may be charged for this offense.

While the possibility of drug trafficking charges is enough to scare any physician, other criminal charges can be equally damaging, especially depending on how the accused individuals plea to the charges. A health professional’s plea of nolo contendere, which may seem like the safe route, is actually treated the same as a plea of guilty for all purposes. There are ways to defend criminal charges (like the ones against the aforementioned Florida doctor) that can result in a more favorable outcome (e.g., attempting to obtain pre-trial diversion, pre-trial intervention or drug court), but legal advice should be sought from an attorney who frequently represents health care providers before any actions are pursued. To learn more about criminal charges against doctors and other health professionals see this recent post or visit our website at www.TheHealthLawFirm.com.