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Are you being investigated as a doctor for failing to perform statutory or legal obligations?

November 9, 2015
Est read time: 4 minutes
Category:

Have you received an administrative complaint against your physician’s license for failure to perform a statutory or legal obligation placed on a physician? If you have, it is very important that you contact an experienced health care attorney to go over the charges. These charges are serious and can have a negative impact on your license and your ability to practice as a doctor in Florida.

The Law

The law states that it is a violation of the law to not perform a statutory obligation or legal obligation. Florida law on point here is Florida Statute 458.331(1)(g). The statute says the following in particular:

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

This is a very broad statute. However, it is a charge that is commonly made against physicians by the Board of Medicine, so it is very important that you pay attention to it. As the disciplinary guidelines make clear, it can constitute any statutory or legal obligation in other parts of the statute chapter, such as the duty to report disciplinary action taken against your license in another jurisdiction; or any not specifically in there. If there is a statutory or legal obligation place upon you and you fail to perform that obligation, an administrative complaint can be made against your license. If you have had complaints made against your license for violation of this statute, you should contact an experienced health care attorney immediately to go over your options. There can be severe repercussions for you if you wait.

Penalties

There are a range of actions that can be taken against you should the Board of Medicine decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Medicine, particularly in Rule 64B8-8.001 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:

For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm:
MINIMUM:MAXIMUM:
FIRST OFFENSE:A letter of concernRevocation or denial, and an administrative fine from $1,000.00 to $10,000.00, unless otherwise provided by law.
SECOND OFFENSE:A reprimandRevocation or denial, and an administrative fine from $5,000.00 to $10,000.00, unless otherwise provided by law.

The biggest thing to note here is that these penalties under the disciplinary guidelines are only used if you are accused of violating any offense not specifically listed in the disciplinary guidelines. That is what makes the statute so broad, in that you can be disciplined for non-specific offenses. You could receive a letter of concern or reprimand depending on whether it is the first or second offense. However, there could be very big consequences as well. It is possible your license could be revoked or denied and you could face fines ranging from $1,000 to $10,000, unless otherwise provided by law. You should also refer to other blog posts on this website for the disciplinary guidelines of other offenses or consult your health care attorney. This is very serious. You should also be aware that these are guidelines that the board should follow in handing out discipline, but are not set in stone, and can be accompanied by other penalties or deviated from. These penalties can be found in Florida Statute 456.072(2), which you should review with your health care attorney.

Aggravating/Mitigating Circumstances

The board hearing your case can take into account various factors that could affect the discipline you receive. These factors are called aggravating and mitigating circumstances. Aggravating circumstances are factors that can hurt your case. If aggravating circumstances are proven you could face harsher penalties. Mitigating circumstances are factors that can help your case. If mitigating circumstances are proven you could face lesser penalties. These factors can also be found in rule 64B8-8.001(3) in the Florida Administrative Code. If either side can prove with clear and convincing evidence the aggravating or mitigating circumstances, the discipline you face could be altered by the board. Here are the factors:

(a) Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

(b) Legal status at the time of the offense: no restraints, or legal constraints;

(c) The number of counts or separate offenses established;

(d) The number of times the same offense or offenses have previously been committed by the licensee or applicant;

(e) The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

(f) Pecuniary benefit or self-gain inuring to the applicant or licensee;

(g) The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.

(h) Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

The board can take into account any of these factors, or other factors, in your hearing. The board can deviate from the standard disciplinary guidelines if they find that any of these aggravating or mitigating circumstances exist. These are very important factors that you should discuss with your health care attorney.

Conclusion

If you are a licensed health care professional in Florida and have received an administrative complaint for violation of the statutes, you are probably concerned about how this may affect your license.  To set up a FREE no obligation consultation with Jeff Howell contact the law firm of Howell, Buchan & Strong, Attorneys at Law at 850-877-7776.  We represent licensed health care professionals and facilities statewide, including out of state clients who are concerned about the status of their Florida license.

Have Questions? Let's Talk

Contact the law firm of Howell, Buchan & Strong at 850-877-7776 to set up a FREE no-obligation consultation. Our firm represents physicians, nurses, psychologists, and other licensed professionals statewide.
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