Are you being investigated as a doctor for medical malpractice?
Have you received an administrative complaint against your physician’s license for medical malpractice? 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 states that disciplinary action can be taken against your license if you are found to have committed medical malpractice. There are several Florida Statutes to work with here. The basic statute is Florida Statute 458.331(1)(t)(1). That 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):
1. Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.
The next statute to look at is Florida Statute 456.50(1)(g), which defines medical malpractice as the following:
(g) “Medical malpractice” means the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. Only for the purpose of finding repeated medical malpractice pursuant to this section, any similar wrongful act, neglect, or default committed in another state or country which, if committed in this state, would have been considered medical malpractice as defined in this paragraph, shall be considered medical malpractice if the standard of care and burden of proof applied in the other state or country equaled or exceeded that used in this state.
Florida Statute 458.331(1)(t)(1) is the general statute that allows for disciplinary action to be taken against a licensee for committing medical malpractice. The definition for medical malpractice is found in Florida Statute 456.50(1)(g). Important to note in the general statute is that medical malpractice can happen with just one instance, event, or act. There does not have to be multiple occurrences for disciplinary charges to be brought under this particular statute. Medical malpractice is defined as the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. The standard of care recognized in general law is found in Florida Statute 766.102(1). That statute says the following:
766.102(1) The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
According to the statute, the standard of care is what is acceptable and appropriate by reasonably prudent similar health care providers. In other words, the standard of care is set by what is reasonable among other doctors similarly situated. 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.
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:
|FIRST OFFENSE:||One (1) year probation||Revocation or denial and an administrative fine from $1,000.00 to $10,000.00.|
|SECOND OFFENSE:||Two (2) years probation||Revocation or denial and an administrative fine from $5,000.00 to $10,000.00.|
Minimum penalties under these disciplinary guidelines call for you to receive one year probation, though that can be coupled with other penalties as well. Be mindful that even though you could be on your first offense, your license could be revoked or denied. Also, you could face an administrative fine from $1,000 to $10,000. For a second offense, you could receive two years of probation at a minimum. Like a first offense, your license could be revoked or denied, but the fine ranges from $5,000 to $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.
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.
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.