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Are you being investigated as a dentist for prescribing, dispensing, or preparing legend drugs outside the course of the professional practice of dentistry?

January 31, 2016
Est read time: 4 minutes
Category:

Have you received an administrative complaint against your dentist license for prescribing, dispensing, or preparing a legend drug other than in the course of the professional practice of a dentist? 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 it is a violation of the law to prescribe, administer, dispense, or otherwise prepare the use of legend drugs, other than in the course of the dentist’s professional practice. Florida law on point here is Florida Statute 466.028(1)(p). That statute says in particular the following:

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

(p) Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the professional practice of the dentist, without regard to her or his intent.

Legend drugs means prescription drugs. The statute here covers prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug; so it is broad in scope here. The statute is only violated if the dentist does this other than in the course of their professional practice. However, it is very important to note here that there is a presumption. The statute says that it will be presumed that prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug inappropriately, or in excess or inappropriate quantities is not in the course of the dentist’s professional practice and is not in the best interest of the patient. So even if you are in the course of your professional practice, if you prepare a legend drug inappropriately or in excess, you are presumed to not be in your professional practice and can be subject to discipline. This statute includes controlled substances as well. 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:$500 fineProbation with conditions, $10,000 fine and up to suspension
SECOND OFFENSE:Probation with conditions and a $2,500 fineSuspension and a $10,000 fine
THIRD OFFENSE:Suspension followed by probation and $5,000 fineRevocation and $10,000 fine

 

At a minimum, for a first offense you could receive a $500 fine. At a maximum, you could receive probation with conditions on your license, a $10,000 fine or could possibly face suspension. The penalties become more severe with each offense. The second offense carries a minimum penalty of probation with conditions and a fine of $2,500. There is a maximum penalty of a suspended license and a fine of $10,000. For a third offense, you could face a minimum of a suspended license, followed by probation and a fine of $5,000. At a maximum, your license could be revoked and you could receive a fine of $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 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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