Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

DOH Practitioner Investigation What to Expect

Gregory A. Chaires, Esq.
1-1-2 In order to practice medicine in the state of Florida, a physician must be licensed to practice medicine by either the Florida Board of Medicine or the Florida Board of Osteopathic Medicine (collectively, the “Boards”).  Once a medical license is obtained it becomes a property right of the physician.   All physicians are subject to disciplinary control by the Boards and their practice is regulated by the State.  Investigations conducted by the Department of Health (DOH) generally result from reporting mechanisms put in place by the Florida Legislature. Complaints may originate from a variety of sources including patients, closed claims for medical negligence, newspaper reports of criminal activity, Code 15 Reports, other practitioners and plaintiff attorneys. After receipt of a complaint, the Department assigns the case to a field office the locality of the physician.   All physicians whose licenses are under investigation are notified of the investigation via certified mail from the Department.1 Before a physician is notified of a complaint, however, the Department first must ensure that there are legally sufficient grounds for doing so.2   A complaint is legally sufficient if it contains facts which show that a physician may have violated any rule or regulation applicable to that physician under Florida Law.3   Once a complaint is assigned to a field office, an investigator collects information and evidence concerning the allegations of the complaint.  This is done by conducting interviews, obtaining medical records or policy and procedures or any other information that may bear on the alleged violation(s). This also includes a statement from the physician. It is important that health care providers understand they have a right against self-incrimination and do not need to reply personally to the investigation. Many physicians believe that he or she can make a phone call to the investigator, tell them their side of the story and the matter will be dismissed. Investigators have no decision-making authority, they merely prepare a report stating what they think you said. It is much more important that the physician obtain competent legal counsel that is familiar with the administrative law to assist in preparing and submitting any response concerning the investigation.   The notice of the investigation received by the physician includes a copy of the complaint document and a uniform complaint form.  The uniform complaint form sets forth the specific allegations against the physician and the alleged violations of Florida law. Physicians are afforded approximately 45 days to respond in writing to the allegations stated in the uniform complaint form.4 The response should be from the physician’s legal counsel, not the physician.   The investigator compiles information and generates an investigative report that summarizes his or her findings, including any statement submitted by the physician through his or her attorney, and the case is forwarded to a Department prosecutor for further review.  It is the prosecutor’s job to first determine whether there is evidence to proceed with the case.  The prosecutor thereafter makes a recommendation to the Probable Cause Panel charged with reviewing the case whether to proceed with a disciplinary action or dismiss the case.  For cases dismissed without a finding of probable cause, the investigation itself and all materials generated during the investigation remain confidential.5   The Probable Cause Panel (the “Panel”) is made up of two physicians and one consumer member of the respective Boards. One physician is a current member and generally, the other physician is a former member. The Department presents the investigation to the Panel to ultimately determine if the matter should proceed or be dismissed based upon a recommendation made by the Department prosecutor.  The Panel may, but is not obligated, to follow the recommendations of the Department prosecutor.  The Panel’s job is to determine ultimately if probable cause exists to direct the Department to file a disciplinary action against the physician. Probable cause simply means that there is evidence that there has been a violation of Florida law.   If the panel finds that there is insufficient evidence to support a finding of probable cause, the matter is dismissed and the matter is closed.  If the panel believes that there is sufficient evidence to find probable cause, it will direct the Department to file an Administrative Complaint against the physician. The Panel occasionally issues a letter of guidance to the physician in lieu of a probable cause finding.  If a letter of guidance is issued, the investigation remains confidential.   If an Administrative Complaint is filed against the physician, there are several options for the physician to consider which will be set forth in an Election of Rights form received with the complaint.  Among the available options:   1.) Settlement Agreement. A physician can enter into a settlement agreement with the Department. By entering into a settlement agreement, the physician can negotiate the terms with the prosecutor and does not admit nor deny the allegations set forth in the administrative complaint. The settlement agreement must be approved by the respective Board. Typically, the physician will pay an administrative fine which can range in amount depending upon the severity of the violation. The physician will also likely be required to partake in community service and complete additional hours of continuing medical education. In addition, the physician is always required to pay Departmental costs.   2.) Board Hearing.  If the physician admits to the facts presented in the administrative complaint, but cannot come to agreeable terms with the prosecutor or believes there are strong mitigating factors to consider, the physician can choose to have a hearing before the Board. If the physician chooses a hearing with non-disputed facts, the physician is forced to adhere to the determinations of the Board. It is recommended that this alternative only be used in rare circumstances and with the advice of legal counsel.   3.) Formal Administrative Hearing. A third alternative is to opt for a more formal hearing before an Administrative Law Judge (ALJ).  A formal hearing before an ALG from the Division of Administrative Hearings is held when there are disputed issues of material fact.6   Each side presents their evidence and at the end of the presentation of all the evidence, the ALJ issues a recommended order. The recommended order is then forwarded to the Board for final approval and issuance of a penalty. The Board always has the last word in disciplinary matters and is the final determiner of the appropriate penalty. Penalties can range from complete revocation of a physician’s license, suspension, or in the case of less severe infractions, monetary fines.7 Other penalties include additional continuing medical education, community service and payment of the costs of the investigation.   The purpose of discipline by the Boards is to improve the quality of health care services. Sometimes this means educating a physician or providing the physician with a warning; other times it is by removing an incompetent physician from the practice of medicine altogether. It is an extremely important function and one that should be respected.   When a physician receives notification from the Department that an investigation has been initiated, it is important the physician takes the matter seriously whether or not he or she feels any wrongdoing occurred. Unlike medical malpractice actions, the risks involved with a disciplinary proceeding are more than monetary. The physician can permanently lose the ability to practice medicine. Obtaining prompt, competent legal advice and assistance can ensure that your rights are appropriately preserved.   Should Self Insurance Program participants receive a notification of investigation from the Department of Health, we ask that you promptly inform the on-call SIP Risk Manager at 273-7006 who will assist and guide you through the process.   1 If it is determined notification would be detrimental to the investigation, the Department may withhold notification. 2 Fla. Stat. Ch. 456.073(1)(2004) 3 Id at 1 4 Fla. Stat. Ch. 458.331(9)(2004)’ Fla. Stat. Ch. 459.015(9)(2004 5Fla. Stat. Ch 456.073(2)(2004) 6Fla. Stat. Ch. 456.073(5)(2004) 7See 64B8-8.001,F.A.C. at http://fac.dos.state.fl.us/faconline/chapter64.p df for a list of recommended range of penalties.