Legal Counsel is Important in Every Licensing Case

I write several times a year about the importance of having legal counsel represent licensed professionals before any Pennsylvania professional board during a disciplinary process. From time to time I also write about individual cases that highlight unique issues, changes in prosecution legal strategy, or how cases are being handled differently.  This summer I have a come across several instances in which prosecution legal strategy would have changed significantly  (if an attorney was handling the case) or will because I was hired to handle the settlement negotiations. These developments more than ever highlight the importance of hiring an attorney to assist every professional in these matters.

The three instances span several areas of the disciplinary process, the first being the most typical.  Several highly trained medical practitioners contacted me to discuss, after the fact, their complex PHP/PHMP contract into which they were being forced to enter but had already complied by going to an assessment.  (See my Spring 2015 blog about why not to do this.)  Each professional thought it was in their best interest to consult their hospital compliance officer, rather than an experienced independent attorney, when confronted with a “Letter of Concern” and a PHP/PHMP agreement. Thinking the corporate/regulatory compliance was their “medical friend,” they divulged their alcohol use, current PHP assessment, and the PHMP VRP recommendation. Wrong thing to do!!!!!

These doctors are now being compelled to go into the monitoring program by their employer, and not just the PHP, to save their job. They regret this decision and did not properly contemplate the rigors of the program into which they were “voluntarily” entering. Thinking about their singular job versus a lifetime license was wrong.

The importance of legal counsel is next displayed in a recent pharmacy board trial I handled. I represent one pharmacists in a disciplinary matter that also involves the owner of the same pharmacy, and two other pharmacies, in an independent but related disciplinary action. The owner/pharmacist chose not to have an attorney at his disciplinary hearing. At that hearing, the prosecution introduced into evidence 350 pages of internal drug supplier/company documents regarding his three pharmacies. The hearing officer utilized those documents and the legal conclusions contained therein to discipline the owner/pharmacist.

Conversely, knowing the documents of the other two pharmacies were not admissible in a court of law under basic evidentiary rules, I objected to same documents being introduced against my client at her pharmacy hearing. I also objected to the prosecutor’s expert giving her legal opinion of my client’s alleged rule violations as such was based upon many of the documents now precluded. The pharmacy board hearing officer agreed and stripped the Commonwealth of 9/10 of the evidence in their case against my client. The expert was also precluded from rendering an opinion based upon much of the excluded documents. Solely due to having an attorney, the disciplinary result will be significantly better for my client then the suspension proposed against the pharmacy owner/pharmacist who had no attorney.

A third and more devious example of why an attorney needs to assist licensees in any board matter presented itself in a recent, unique settlement agreement I reviewed. My client successfully presented herself at a mental and physical evaluation after a A Rule to Show Cause requiring the evaluation was filed against her. I was hired to prepare her for that evaluation. The expert found that she did not suffer from any drug or alcohol addiction that rendered her an impaired professional warranting monitoring. This is great.

Nonetheless, some of the facts in the case suggest she should secure additional continuing education credits beyond the standard 24 per cycle. To this end, the prosecutor proposed a “non-public, non-disciplinary” settlement agreement. An unrepresented professional would probably sign the agreement without objection assuming additional education credits was the sole determining factor of the probation term.

However, the agreement’s clauses state probation will terminate only upon approval of a disciplinary type probation officer. The language states “at least” six months probation. The agreement also includes the clause “reinstatement upon approval of either the board or probation officer.” Another clause states the probation officer could seek another evaluation for clearance to confirm public safety before terminating probation.

This new and unique settlement agreement sought to evade the Commonwealth’s chosen expert’s determination of no monitoring. The settlement agreement as drafted would allow the Commonwealth another opportunity for an evaluation in the future to determine if monitoring would be necessary for “public safety.”  As counsel, I objected to each open ended and clearly ambiguous contingency type clauses in a continuing education settlement agreement.

Counsel is important.  Licensees focusing on their profession, paying bills, raising their children, or simply patient safety do not understand the contingent nature of these settlement clauses.  Licensees appearing at hearings without counsel do not know how and why to object to certain documents being presented to the hearing officer.  A medical professionals seeing 15 to 20 patients a day, focusing on their “J.O.B.”, will not perceive the long term importance of the legal admissions contained in monitoring agreements and the future restrictions such imposed upon their licenses.

All professionals are focusing on maintaining the status quo. They will do anything necessary to keep working and not shake the apple cart. Do not do this. Do not sign agreements without an attorney. Do not go to hearings without an attorney. Do not contact compliance officers to discuss PHP/PHMP contracts.  Any suggestion of an impairment will necessarily alter any and every employer/hospital impressions of a licensed professional. Insurance priorities, attending privileges, hospital malpractice issues will become overriding concerns. Impaired or allegedly impaired doctors or professionals will be given short shrift and hung out to dry by any and every compliance officer.

Call me to discuss your case.

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