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Are you being investigated as a doctor for being unable to practice medicine with reasonable skill and safety?

December 12, 2015
Est read time: 5 minutes
Category:

Have you received an administrative complaint against your physician’s license for being unable to practice medicine with reasonable skill and safety due to illness, alcohol, drugs, or physical or mental condition? 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 disciplinary action can be taken against your license if it is shown that you are unable to practice medicine with reasonable skill and safety, due to a number of factors. Those factors include illness, being impaired through drugs or alcohol, along with mental or physical conditioning. Florida law on point here is Florida Statute 458.331(1)(s). 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):

(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the licensee is unable to practice medicine because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed may not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of medicine with reasonable skill and safety to patients.

There is a lot to this statute but all of it is important. Your inability to practice medicine with reasonable skill and safety does not have to be only because of illness or the use of alcohol, drugs, or mental or physical condition. The statute includes the use of narcotics, chemicals, or any other type of material, so anything that prevents you from being able to practice medicine with reasonable skill and safety could lead to disciplinary action. The statute also gives the department the authority to compel you to submit to a mental or physical examination should the State Surgeon General or their designee find that probable cause exists that you are unable to practice medicine for any of the reasons stated. You can refuse but the department could then get a court order to compel you to continue anyways. You should also know that under the statute, should you be deemed unable to practice, you will have the opportunity to prove your competency at reasonable intervals. 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.

The 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:ProbationDenial or indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from $1,000.00 to $5,000.00.

 

SECOND OFFENSE:Indefinite suspension, followed by probationSuspension for a minimum of five (5) years or until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from $5,000.00 to $10,000.00.

Note that at a minimum for the first offense, you could receive probation, but if you are deemed unfit to practice medicine, most likely that will be coupled with other penalties. Under these guidelines, your license to practice could be denied or indefinitely suspended until you can demonstrate your ability to practice medicine with reasonable skill and safety. After that you could be placed on probation. Note also that you can be assessed an administrative fine between $1,000 and $5,000. For a second offense, the penalties get worse. At a minimum you can be indefinitely suspended, followed by probation. However, you should know that for a second offense, your license could be suspended for at least 5 years, or until you can demonstrate your ability to practice with reasonable skill and safety. You could receive probation after that and the fines get bigger as you can be assessed a fine between $5,000 and $10,000. 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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