By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
This two part blog series discusses the seriousness of receiving a letter of investigation from the Department of Health (DOH) and the importance of consulting an experienced health law attorney. In many cases, we are consulted by dentists after the entire investigation is over. Often, the mistakes that have been made severely compromise our ability to achieve a favorable result for the dentist.
This is part two in a two part blog series. To read part one of this series, click here.
These are the major mistakes we see in the cases we are called upon to defend after a DOH investigation has been initiated against a dentist:
16. Failing to check to see if their dental malpractice insurance carrier will pay the legal fees to defend them in this investigation. In the absence of coverage by their insurance carrier, failing to retain the services of a health care attorney experienced in dental board cases to represent them from the beginning of the investigation.
17. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them. Note: Every telephone conversation with DOH personnel is entered into their computer data base and often internal e-mails Are exchanged sharing this information afterwards.
18. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.
19. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
20. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain written witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case once it has been completed.
21. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
22. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
23. Retaining “consultants” or other non-lawyer personnel to represent them in the matter, instead of experienced legal counsel.
24. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
25. Attempting to defend themselves.
26. Believing that because they know someone on the Board of Dentistry, with the Department of Health, or a state legislator, that influence can be exerted to have the case dismissed. This is definitely not the case. If you do know someone on the Board of Dentistry, that person is required by law to recuse (disqualify) themself from any discussion or vote on your case.
27. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.
28. Believing that if an emergency Suspension Order (ESO) is entered against them that it may be successfully appealed. In realty, ESO’s are reviewed by the appellate courts when there is an appeal based on what is contained “within the four corners of the document.” Nothing outside the document may be considered. If the ESO appears to state a sufficient case for an emergency suspension (whether the facts it states are actually true or not), the court of appeal is required to uphold the emergency suspension.
29. Communicating with the Department of Health about the pending case.
30. Failing to obtain legal representation.
The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Dentistry in such cases and does so on a regular basis.
Contact Health Law Attorneys Experienced with Department of Health Investigations of Dentists.
The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at 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.
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