By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The investigation of a complaint which could lead to the revocation of a physician’s license to practice, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter and it should be treated as such by the physician who receives it. Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over and the damage is already done. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the physician.
These are the ten biggest mistakes we see in the physician cases we are called upon to defend after a Department of Health investigation of them is commenced:
1. Contacting the Department of Health (DOH) investigator and providing him/her an oral statement or oral interview.
2. Making a written statement in response to the “invitation” extended by the DOH investigator to do so.
3. Providing a copy of their curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so.
4. Believing that if they “just explain it” the investigation will be closed and the case dropped.
5. Failing to submit a timely objection to a DOH subpoena, when there is a subpoena, and there are valid grounds to do so (e.g., patient does not want records released, patient privacy).
6. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
7. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.
8. Failing to keep an exact copy of any document, letter or statement provided to the investigator.
9. Believing that the investigator has knowledge or experience in the medical or health care matters being investigated.
10. Believing that the investigator is merely attempting to ascertain the truth of the matter and, if the truth is known, this will result in the matter being dismissed.
11. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
12. Believing that because they haven’t heard anything for six or eight months (or even years in some instances) that the matter has “gone away.”
13. Believing that the case is indefensible so there is no reason to even try to advocate for getting it dismissed.
14. 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.
15. 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 the Board of Medicine for a decision.
16. Taking legal advice from their non-lawyer colleagues regarding what they should do in defending themselves in the investigation.
17. Attempting to defend themselves without the assistance of an attorney.
18. Believing that, because they know someone on (or previously on) the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
19. Providing copies of medical records to the DOH Investigator and signing a “Certificate of Completeness” so that the DOH can use these against them in its future disciplinary proceedings against them.
20. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them and to communicate with the DOH investigator for them.
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 Medicine in such cases and does so on a regular basis.
To learn more about how The Health Law Firm can assist you if you are being investigated by the DOH, click here.
Contact Health Law Attorneys Experienced with Department of Health Investigations of Physicians.
The attorneys of The Health Law Firm provide legal representation to osteopathic physicians 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 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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