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Are you being investigated as a doctor for performing on the wrong patient or performing wrong services?

November 30, 2015
Est read time: 5 minutes
Category:

Have you received an administrative complaint against your physician’s license for performing health care services on the wrong patient, or providing the wrong services or unauthorized services? 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 says that is a violation of the law to perform health care services on the wrong patient or to perform the wrong services on a patient; a procedure that is unauthorized to be performed or a procedure is medically unnecessary. Florida law on point here is Florida Statute 456.072(1)(bb). The statute in particular says the following:

(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

(bb) Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition. For the purposes of this paragraph, performing or attempting to perform health care services includes the preparation of the patient.

Important to note here is that the statute covers, not only, performing the services or procedures, but also attempting to perform those services or procedures. Even if the service or procedure is not the wrong one, you could still be disciplined if the procedure was not authorized to be performed or if it is medically unnecessary or unrelated to the patient’s diagnosis or medical condition. It should be also be noted that mere preparation of the patient for the service or procedure is included as performing or attempting to perform. 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:

 MINIMUM:MAXIMUM:
FIRST OFFENSE:$1,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, and one (1) hour lecture on wrong-site surgery in the State of Florida$10,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, undergo a risk management assessment, a one (1) hour lecture on wrong-site surgery, and suspension to be followed by a term of probation.

 

SECOND OFFENSE:$10,000.00 fine, a reprimand, undergo a risk management assessment, and probation or denial$10,000.00 fine and revocation
THIRD OFFENSE:$10,000.00 fine, a reprimand, undergo a competency evaluation, and suspension to be followed by a term of probation$10,000.00 fine and revocation

There are a vast range of disciplinary actions that can be taken against your license. At the very minimum, you could receive a $1,000 fine, a letter of concern, a minimum of 5 hours of risk management education, and a 1 hour lecture on wrong-site surgery in the State of Florida; but only if this is your first offense. The penalties become steeper as it goes on. It is possible that you could have your license revoked after the second offense under these guidelines. You could face probation after the first offense. Hefty fines are also associated with each offense of $10,000. The stiffest penalty under these guidelines are that you receive a $10,000 fine and revocation of your license on the third offense. 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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