Expert Reports, Testimony, and Stipulations — Make Sure Their Expert Comes to Court

The Pennsylvania Rules of Evidence, promulgated rules and case law interpreting those rules, apply to administrative proceedings. An experienced trial attorney should utilize civil and criminal trial evidentiary rulings discussing the rules to their client’s advantage in licensing disciplinary hearings.

The importance of understanding these rules and keeping up to date with the case law cannot be overstated. Inadmissible evidence not objected to becomes part of the record while properly objected to inadmissible evidence is stricken and unavailable for the Board or hearing officer to rely in rendering its decision. This means that any Pennsylvania trial court evidentiary decision should be researched for their applicability in licensing cases.

On March 15, 2016 the Superior Court of Pennsylvania rendered an important evidentiary decision regarding medical records and expert testimony. In that criminal case, the Commonwealth sought to introduce into evidence an emergency room medical record which contained a medical evaluation, diagnosis, and medical conclusion of an injury. The Commonwealth did not ask the doctor to testify, claiming the medical record was not testimonial, admissible as a business record, and therefore the defendant’s sixth amendment right to confrontation did not apply. Commonwealth claimed the medical record/report is a business record, which is an exception to the hearsay rules. Superior Court reviewed the Rules of Evidence and the case law, rejecting the Commonwealth’s position.

Understanding why this ruling is important for your license case is necessary to hiring the right attorney to handle your licensing case. Medical facts (size, shape and where is an injury) contained in medical report are admissible under hearsay rules.

However, a medical opinion or diagnosis (the specific type and cause of an injury – addictions or impairments) are not. The declarant of the medical conclusion, the doctor rending the expert opinion, must testify. Pennsylvania Rule of Evidence 803.1 provides: The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

(3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant-witness that:

(A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and

(C) the declarant-witness testifies [sic] accurately reflects his or her knowledge at the time when made.

If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.

In every impairment case – not just criminal cases – if the Commonwealth seeks to introduce an expert’s report regarding his/her opinion of medical condition, addiction, impairment, and affect on a licensee’s ability to practice, the doctor must come to court. Licensees should never stipulate to the expert report. The expert should be compelled to testify.

This is hugely important in many parts of the licensee disciplinary process. First, never stipulate to any impairment. Signing the PHMP contract admitting you suffer from an addiction or impairment eliminates the legal necessity of the Commonwealth having a licensee evaluated and then calling the expert to testify at a hearing. Secondly, never go to the evaluation of a PHMP approved expert without counsel. You need to be prepared for that evaluation. My prior blogs address these issues.

If the expert concludes the licensee is impaired, hire counsel to fight that conclusion and make sure the expert comes to court. Again, counsel is important here. Make sure you have the expert report before the hearing and that the expert testifies at the hearing. Do not stipulate that his report is admissible and he/she does not have to testify. This is where the Commonwealth v Davis decision is important. The expert must be available and subject to cross examination.

Experienced counsel will know of what issues to cross examine the expert to eliminate certain factual and medical basis for their medical conclusion. It is only during cross examination that the expert’s conclusions will be tested. Thereafter, when briefing the case after the hearing, the record will reflect the doctor’s admissions of what facts are not present in the record to support his decision. When a licensee stipulates to a doctor’s report, such testing and examining the expert’s opinion does not take place.

Three of my recent impairment trials have resulted in significant cross examination and admissions from the Commonwealth’s expert. These admissions eliminate the factual basis for that expert’s medical conclusions. If I stipulated to his report, I would have not secured this type of evidence for my clients. If the expert did not testify, and his report constituted the only evidence upon which the Board could rely to rendering a decision, my clients would not have a chance of winning their impairment case.

Because the expert was subject to the great test of cross examination, as Davis states is required, my clients can win their cases. In each case cross examination revealed omissions of fact and evidence upon which the expert should have but did not consider in rendering his conclusion. Cross examination also revealed the absence of a current medical basis for the expert opinion. Compelling the expert to affirm a licensee’s ability to safely practice, regardless of a medical condition, immediately reveals to a licensee board the weakness in any expert report stating the contrary.

Here is where cross examination is really important. 63 P.S. § 224(a) provides the standard to which the court must subject the expert’s testimony. The provision states: (a) The Board may refuse, suspend or revoke any license in any case where the Board shall find that— (2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination,

The typical expert report simply states such. However, on cross examination, factual concessions reveal how weak the expert opinions typically are. Forcing the Commonwealth at a licensing heating to have the correct witness who can testify and provide admissible and sufficient evidence is paramount. Stipulating to reports and evidence loses your case and your license.

Call me to discuss how to fight your case, properly apply the rules of evidence, make sure your professional licenses is not subject to any discipline.

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Opioid Addiction and the Pharmacist or Doctor’s New Legal Responsibility

Two New York Times headlines affirm the federal and state government responses to pharmacists and medical practitioners’ complicity in the national opioid epidemic.   C.D.C. Painkiller Guidelines Aim to Reduce Addiction Risk and The End of Prescriptions as We Know Them in New York say it all.

Commonwealth of Pennsylvania pharmacists and medical practitioners must become fully familiar with new federal opioid prescription guidelines. In Pennsylvania, the Commonwealth Medical Board released New Opioid Prescribing Guidelines. In 2014 Pennsylvania House Resolution 659 of 2014 directed the Joint State Government Commission to establish a legislative task force and appoint an advisory committee to study opioid addiction in Pennsylvania.  As well, the Effective Prescribing Practices and Pain Management Task Force drafted “Pennsylvania Guidelines on the Use of Opioids to Treat Chronic Noncancer Pain.”

These Commonwealth medical regulatory publications establish a significantly heightened corresponding responsibility for pharmacists filling opioid prescriptions and basic prescription writing responsibility for doctors when writing opioid prescriptions.  New York’s huge step in eliminating all written prescriptions, which eliminated 85% of opioid prescriptions in New York State, is coming to the Commonwealth of Pennsylvania.

The new federal CDC dispensing guidelines, provide clear recommendations about opioid prescribing for primary care physician’s treating adult patients with chronic pain outside of active cancer treatment, palliative care, or end-of-life care. These guidelines, in conjunction with Pennsylvania’s House Resolution 659 of 2014, set forth proper an effective prescribing practices.

These federal and state directives, along with many more, provide a clear framework for disciplinary action against physicians or pharmacists who violate the guidelines. Practitioners who fail to decrease the amount of opioid prescriptions written in comparison to their geographic peers is easy secured proof of dispensing conduct in violation of new and developing guidelines.  As well, malpractice claims against either the doctor or pharmacist, constituting a reportable disciplinary event, will also trigger disciplinary investigations and potential disciplinary actions.

Please call to discuss any investigation of your pharmacy, pharmacist, or your medical practices prescription writing histories. These investigations may either be ongoing or commenced by state or federal DEA agents, board investigators, insurance malpractice defense attorneys, or plaintiffs attorneys.

Drug Act Convictions and Automatic Suspensions

Pennsylvania’s licensing boards have become very proactive in learning of professional’s criminal convictions for violating Pennsylvania Drug and Cosmetic Act – 35 P.S. § 780–113 (a). Once learned, licensing board prosecutors aggressively file petitions for automatic suspensions of professionals’ licenses. At issue is whether the Boards impose, per Drug Act offense, the one year maximum suspension or a suspension for a lesser amount of time and concurrent versus consecutive for each violation.

If the proper attorney handles both the criminal case involving Drug Act allegations and the consequential administrative licensing disciplinary action, the probability of a better total result is clear. In September 2015 I wrote a blog on this exact legal issue. September 2015 Blog

In that blog, I set forth that the Drug Act, § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

How these cases are defended criminally – with an eye towards the license context — is hugely important. Non-drug use or contraband related Drug Act violations need to be clearly discussed in any guilty plea. The guilty plea hearing should include a recitation of facts explicitly eliminating any question that the plea is for personal consumption conduct. The guilty plea colloquy must clearly spell out the absence of evidence regarding drug diversion, positive drug tests, or inferences of personal consumption.

In many Drug Act cases, specious criminal charges are filed for tenuous record keeping violations, charting errors, or untimely prescription dispensing errors. In these cases, the guilty plea must identify the charting errors, dispensing mistakes, or the nature and manner of typical prescription dispensing negligence that forms the foundation of the criminal charges. Emphasizing the non-diversion facts here is important as the Board will consider such when the professional suspension is decided.

Once convicted, how and what is included in the professional’s mandatory notification to the professional board is important. Attach the guilty plea transcript that sets forth the non-diversion factual predicate of the plea. The professional, through counsel, should request the Board to exercise its discretion in not instituting the automatic one year suspension, but some lesser amount. If necessary, file an application to stay the automatic suspension and an answer to the prosecutor’s motion, contesting the Board’s discretionary implementation of a one year suspension.

The perception that automatic one year suspensions are mandatory rather than discretionary stops many licensees from contesting these petitions. Applications for a stay of any license suspension in conjunction with an application answering the petition for an automatic suspension should be filed. Appropriate legal averments and complex legal strategy is necessary to stop any automatic license suspension from going into effect.

A case I recently handled, for which the proposed adjudication has yet to be handled down, is on point. It is an abuse of discretion to impose a one-year suspension of a professional’s license for old convictions that are not related to the use or diversion of any narcotics. Please call me to discuss these issues to properly insure either your license is not suspended for the one year maximum for each Drug Act conviction.

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