Ann Bittinger Healthcare Attorney ann@bittingerlaw.com May 2, 2015 Florida Laws and Rules An In-Depth Analysis of the Regulation of Physicians by the State of Florida Ann Bittinger Healthcare Attorney ann@bittingerlaw.com May 2, 2015

Florida Board of Osteopathic Medicine Objectives: Introduction to the Board Understanding Probable Cause Process Web Site Information (earn mandatory CME…!!!)

History of Florida Board of Osteopathic Medicine The regulation of Osteopathic physicians in the State of Florida dates back over 83 years to 1927 The Board has evolved with changes in medicine, but the founding premise of protecting the safety of the people of Florida through regulation has remained

Licensure Statistics Approximately 280 new osteopathic physicians are licensed each year There are approximately 5,160 Florida licensed osteopathic physicians. Approximately 3,977 of the Florida licensed Osteopathic physicians actually practice in the state. Florida is one of the largest states, in terms of the number of licensed osteopathic physicians. Last year Florida approved 289 new applicants for licensure. Florida has approximately 5200 licensed osteopathic physicians. It is interesting to note that of those licensed, more than 1,100 aren’t actually practicing in the state.

Regulation of Physicians The board is charged with the responsibility of evaluating when a physician’s professional conduct or ability to practice medicine warrants modification, suspension or revocation of the license to practice medicine. The Board’s focus is on protecting the Public…. not on punishing or protecting physicians REGULATING….. ENFORCING….. DISCIPLINING….. Whatever term you choose…the Board’s responsibility AFTER A PHYSICIAN IS LICENSED is to take necessary action whenever a physician is found to be practicing below the standard of care, or is found to have violated any requirements or provisions of Florida’s Osteopathic Medical Practice Act. The Critical Mission is to PROTECT THE PUBLIC

Origin of Complaints Consumers Code 15 Reports Medical Malpractice Litigation Hospital Discipline Reports (Peer Review) Law Enforcement

Department of Health Conducts the investigation preliminarily Investigator reports to attorney for the department That attorney for the Department then presents the case to the Probable Cause Committee of the Board

Probable Cause Standard What is probable cause? Probable cause is not a preponderance of the evidence test. PROBABLE CAUSE is defined as “a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged.” Who is charged with determining probable cause?

Probable Cause Panel Consists of two people, one current board member, and one former board member. The Panel may involve a consumer member. Generally meets once every 3 months except for emergencies. Panel members are provided with a complete copy of the Department’s investigative file including medical records, expert opinions, if any, and any response submitted by the licensee or their attorney. The purpose of the Probable Cause Panel is not to determine guilt or innocence of the accused. Rather, the purpose is to determine whether there is probable cause to support the allegations as a Respondent.

Common Complaints Standard of Care Issues Sexual Misconduct Fraud Impairment Non Compliance with Board Rules: CME and NICA So, how does the process play out?

Probable Cause Process (PCP) (1) Intake (2) Investigation (3) Legal (4) Decision

PCP-Intake The process starts when the Department of Health receives a complaint. The complaint is assigned to an investigator for the Consumer Services Unit. There, the complaint is reviewed by an investigator to determine if it is legally sufficient.

PCP-Intake Legal sufficiency does not involve an assessment of credibility. Rather, it operates under the assumption that everything alleged in the complaint is true, and the allegations would constitute a violation of the Practice Act. An example of a legally insufficient claim would be an allegation that a doctor behaved rudely. While this is unprofessional if true, such an allegation does not constitute a violation of the Practice Act.

PCP-Investigation If a complaint is determined to be legally sufficient, the Department conducts an investigation. The purpose of the investigation is to gather relevant information relating to the complaint. If the case is a paper case (e.g. conviction of a crime), the investigation will be conducted by the Consumer Services Unit. If the case involves witnesses or is otherwise more complex, it will be sent to one of the Department’s field offices where it will be assigned to a field investigator.

PCP-Investigation This investigator will obtain medical records and conduct witness interviews. The Respondent will be sent an informative letter serving both as notice of the investigation, and also as an invitation to provide a response. The Respondent can request a copy of the Department of Health Investigative file if the request is in writing and the Respondent provides a confidentiality agreement. A copy of the file will be provided only if the Department is recommending a finding of probable cause. Respondents have 21 days from the mailing of a copy of the file in which to provide the Department with a response for consideration by the probable cause panel.

PCP-Legal Once the investigation is complete, the case is referred to the Prosecution Services Unit, and assigned to an attorney. Currently there are three (3) attorneys that handle cases involving Osteopathic Medicine. If the case involves allegations concerning the standard of care, the case may be sent to an expert for an opinion. The attorney assigned to a particular case will draft a recommendation that is presented to the Probable Cause Panel. The attorney cannot close cases, and instead can only make recommendations to the Probable Cause Panel.

PCP-Legal The attorney will recommend that the case be handled in one of three manners: 1) that the case proceed with an administrative complaint; 2) that the case be dismissed; or 3) that the case be dismissed with a letter of guidance. A letter of guidance is not a disciplinary action, but rather a statutorily authorized warning letter used in lieu of discipline. The Department can only issue one letter of guidance to a Respondent for a particular or similar type of offense. After the first letter of guidance, the Department is required to recommend disciplinary action for any subsequent violations.

PCP-Decision A decision to find probable cause on a complaint or to dismiss MUST be made by a majority vote of the Probable Cause Panel If the Panel DOES NOT find probable cause the complaint is closed and remains confidential If the Panel DOES find probable cause the process moves forward to an Administrative Complaint (AC) and will become public in 10 days after cause was found

PCP-Decision The AC is then served, and the subject has 21 days to respond The subject may then dispute or not dispute any allegation of material fact If disputed, a Formal Evidentiary Hearing before an Administrative Law Judge may be held If not disputed, an informal hearing before the FL Board of Osteopathic Medicine may be requested

Probable Cause Regardless of what kind of hearing chosen: the Department usually offers the option of resolving the case by entering into a Consent Agreement- which is later presented to the Board for approval

Four Ways a DOH Investigation on Your License Can Begin Upon written complaint signed by complaining individual B. Upon an anonymous complaint C. Upon complaint by a confidential informant D. Upon the Department’s own initiative

“Minor Violations” Passed by Florida Legislature in 1989 – could preclude matter from going to probable cause Board of Osteopathic Medicine calls these “Citations”

Notice of Investigation A complaint analysis is the first step in the review process There are two statutory exceptions to the notification requirement Sec. Dept. & Chairman of Bd. agree notice would be detrimental Criminal Offense The letter should list the statute numbers that they allege you have violated. Get legal advice.

The Phone Call After the Letter You need to clearly and fully understand After you receive written notification about investigation, you will receive a phone call from a Department Investigator He/She will try to convince you he/she is your friend And, try to convince you there is nothing to this matter – “Tallahassee” will close it out

The Phone Call After the Letter (Cont.) E. At this point, you SHOULD HAVE an attorney providing you with sound legal advice F. DOH – MUST promptly furnish a copy of complaint or document which resulted in investigation Within 45 days – you MUST submit a written response - MUST be considered by probable cause panel for the Board of Osteopathic Medicine An attorney is able to extend the response timeframe through properly filed motions

Your Right to Remain Silent Constitutional right to remain silent You DO NOT have to respond to any questions by DOH investigator ALL communications - through your attorney

DOH Resources Investigative Subpoenas Supported by Affidavit Departments initiative or request by probable cause The validity may be challenged a. Was unlawfully issued It is unreasonably broad in scope Requires production of unreasonable materials Investigative Depositions Be aware – using deposition at subsequent formal hearing against you Department may take depositions – own initiative or request probable cause panel; They DO NOT have to notify you

When Investigation is Concluded: Entire investigative report with all exhibits is forwarded to Department’s legal section in Tallahassee Presented to probable cause panel - to determine whether probable cause should be found and an administrative complaint issued

Presentation before the Board In a hotel meeting room Very informal Lawyer provides a written statement ahead of time for the packet You may be asked to provide an overview Sworn statements Get transcript Usually a verbal decision given right then, with a right to review later

Impairment A parallel track to discipline Professionals Resource Network Evaluation and Consultations to the Board They work for the Board. They are not independent evaluators. In some situations, PRN contracts are wonderful and allow the practitioner to recover and maintain the ability to practice, without discipline. In other situations, clients have said the process is inappropriate.

Choice of Counsel Med Mal Insurance – usually these are med mal defense attorneys whose client is the insurance company, not you. Independent attorney Physician representation Civil litigation

Thank you! Questions? Ann Bittinger, Attorney The Bittinger Law Firm ann@bittingerlaw.com (904) 821-9000 13500 Sutton Park Drive South, Suite 201, Jacksonville, FL 32224