More Examples Why Counsel is Important in Licensing Cases

This week I wrote a blog about the importance of having an attorney handle your professional disciplinary license case. On July 9 & 10, 2015 two more Commonwealth Court cases were handed down affirming my opinion.  Each case magnifies the importance of my blogs on why licensees need an attorney at all times in these professional disciplinary cases.  The cases are Gray v. Bureau of Professional and Occupational Affairs and Tarapchak v Bureau of Professional and Occupational Affairs.

Gray is an applicant who answered yes to having a prior criminal conviction on the state Board of Medicine application. Gray sought a behavior specialist license. Grey acknowledged a 1977 burglary conviction and a February 2008 simple assault, reckless endangering another person, terroristic threats conviction for which he was still on probation in  2012 when he applied for licensure. Gray was provisionally denied a license due to character and fitness deficiencies and timely appealed.

Grey attended the hearing without counsel and attempted to present certain evidence at the hearing that was not properly authenticated or admissible. The precluded evidence was Gray’s letters attesting to his moral character and fitness. In every application case for which someone is denied licensure due to character and fitness, evidence of good character and rehabilitation is paramount.

This evidence must be presented via live testimony with individuals appearing in court.  Gray, not having counsel, did not properly anticipate this issue and did not come prepared with live witnesses to testify on his behalf. As a application case addressing fitness, character, and morals, his fate was sealed before the hearing began.

The attorney prosecuting the case, an experienced litigator, Joan Miller, Esquire, properly objected to the proposed hearsay evidence. The hearing officer for the Medical Board properly sustained the objections and Gray’s letters of reference were excluded. He lost his case before it began. Absent counsel, Gray did not know this and suffered the legal consequences for his lapse.

Tarapchak, acting without counsel, appealed a decision indefinitely suspending her license to practice osteopathic medicine and surgery for no less than three years, retroactive for 18 months.  Tarapchak’s disciplinary matters started in 2010 when, as an osteopathic physician and surgeon,  a petition to compel a mental and physical evaluation addressing her fitness to practice medicine was filed against her.

Similar to a Dr. Woody mental and physical evaluation, the medical board chose Pogos Voskanian, M.D., a psychiatrist, to conduct the evaluation.  He determined that Tarapchak suffered from a drug or alcohol or mental health impairment that rendered her unable to practice osteopathic medicine with reasonable skill and safety absent an increased level of monitoring and a higher degree of treatment.  Tarapchak, without counsel objected to this conclusion, which was overruled and required her to enter the monitoring program.

Tarapchak relented and agreed, signing a consent agreement and order in 2011. Prior blogs address the importance of having counsel prepare every licensee for and attendance with the licensee at these mental and physical evaluations. It does not appear Tarapchak had counsel at that evaluation.

Once Tara was fully enrolled (meaning a final consent agreement was entered by the Board)  in the monitoring program, she violated its terms.  Tarapchak failed to 1) submit to an assessment, 2) provide drug specimens, 3) make timely payment of costs, and 4) cooperate with the PHMP caseworker.  The prosecutor eventually filed a petition for relief, seeking to have Tarapchak kicked out of the monitoring program and indefinitely suspend her license. Tarapchak’s noncompliance with the monitoring programs strict protocols was the issue.

Unfortunately, Tarapchak then began engaging in a series of legal petitions that were both a waste of time and did not have legal merit.  The primary issue of which she tried to address I have written on many occasions; she had “buyers remorse” for signing a consent agreement that bound her to the terms of the PHP/PHMP monitoring program. Tarapchak did not realize the significance of what “cooperation” meant. One of my spring 2015 blogs clearly defines these terms.  Once Tarapchak was stripped of her license and compelled PHMP enrollment, she ran out of money.

The importance of this case is clear. Do not attend a mental and physical evaluation without having counsel properly prepare you for the expert evaluation.  DO NOT GO TO ANY ASSESSMENT WITHOUT COUNSEL PREPARATION.  Absent counsel and a clear understanding of the importance of attending the mental and physical evaluation, and being properly prepared for the evaluation, Tarapchak really lost her license in 2010. While the appellate court case is dated July 2015, Tarapchak effectively lost her license in 2010 when the decision for monitoring was issued by the expert who conducted the mental and physical valuation. The next five years of her professional existence simply focused on not complying with its terms and then struggling with the consequences of not being prepared at that mental and physical evaluation.

Please call me to discuss your case.

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