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

January 23, 2016
Est read time: 6 minutes
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Have you received an administrative complaint against your dentist license for being unable to practice with reasonable skill and safety by reason of illness or alcohol, drugs, or mental or physical 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 dentist in Florida.

The Law

The law states that disciplinary action can be taken against your license if you have been found to be unable to practice dentistry with reasonable skill and safety to patients. There are a variety of ways one can become unable to practice with reasonable and safety, including drugs and alcohol. Florida law on point here is Florida Statute 466.028(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 her or his profession 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 her or his designee that probable cause exists to believe that the licensee is unable to practice dentistry or dental hygiene 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 shall 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 affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of her or his profession with reasonable skill and safety to patients.

There is a lot to this statute but all of it is important. Your inability to practice dentistry 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 dentistry 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.

Penalties

There are a range of actions that can be taken against you should the Board of Dentistry decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Dentistry, particularly in Rule 64B5-13.005 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:

MINIMUM:MAXIMUM:
FIRST OFFENSE:Denial, or suspension until licensee petitions the Board and demonstrates ability to practice with reasonable skill and safety, followed by probation with conditions and up to $5,000 fineN/A
SECOND OFFENSE:Denial, or suspension until licensee petitions the Board and demonstrates ability to practice with reasonable skill and safety, followed by probation with conditions and up to $5,000 fineSuspension followed by probation and $10,000 fine
THIRD OFFENSE:Denial, or suspension until licensee petitions the Board and demonstrates ability to practice with reasonable skill and safety, followed by probation with conditions and up to $10,000 fineRevocation and $10,000 fine

 

For a first offense, there is no maximum penalty in the guidelines. The penalty for the first offense is a denial of your license, or a suspension of your license until you petition the board and demonstrate your ability to practice with reasonable skill and safety. That is followed by a period of probation with conditions on your license and a fine up to $5,000. Note that you demonstrating to the board your ability to practice and probation with conditions is a minimum penalty under all three offenses. However, the fines increase after the second offense. For a second offense you can receive a fine of up to $5,000, but could receive a fine of up to $10,000 for the third offense. For a second offense, you could receive a maximum penalty of a suspended license, followed by probation and a $10,000 fine. Most severe is the third offense, which at the maximum level you could see your license be revoked and receive a $10,000 fine. 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 64B5-13.005 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:

(2) Based upon consideration of aggravating or mitigating factors, present in an individual case, except for explicit statutory maximum and minimum penalty requirements, the Board may deviate from the penalties recommended in subsections (1) above and (3) below. The Board shall consider as aggravating or mitigating factors the following:

(a) The danger to the public;

(b) The number of specific offenses, other than the offense for which the licensee is being punished.;

(c) Prior discipline that has been imposed on the licensee;

(d) The length of time the licensee has practiced;

(e) The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;

(f) The deterrent effect of the penalty imposed;

(g) The effect of the penalty upon the licensee;

(h) Efforts by the licensee towards rehabilitation;

(i) The actual knowledge of the licensee pertaining to the violation;

(j) Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop the violation; and

(k) Any other relevant mitigating or aggravating factor under the circumstances.

 

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

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