Recent activity in our office included resolving one license case before the Iowa Board of Medicine, that one for a medical doctor, and taking on another case before the Iowa Board of Nursing for a licensed practical nurse. The first one we resolved and the other is just beginning. These two cases we consider complex litigation that will take considerable time. The issues involved are complicated and when the issues are about professional competence (judgment) the professionals' reputation is at stake. These are serious matters. In most cases it seems unfair to say the doctor is incompetent when it’s nothing more than a disagreement with a judgment call. But today's blog is about the system itself. All these cases start out the same with the same flawed system. The legal framework itself is unfair to both the professionals and to the public.
In both cases, the Iowa Board of Medicine and the Iowa Board of Nursing, refuse to provide any portion of their file, including the evidence of expert reports before filing charges, all the while each offers a settlement document, that if signed avoids the process. But this is wrong, because offering terms of settlement without providing evidence of wrongdoing is heavy handed and not in the public's best interest. If the idea is to offer a quick resolution why refuse to provide evidence, so we can discuss the charges which in each case have seemed to me to be excessive. Why overcharge and then refuse to even allow us to refute the evidence? We can’t refute that which we don’t know exists, now can we? Give us the evidence before filing charges and allow the professional the opportunity to show you where you’re wrong.
Both of these cases have the same very important issues involving the professionals’ reputation and what is in the best interest of the public. Yet neither professional is given the opportunity to refute the evidence before charges are filed. Here is how the process is working.
- The Board through its investigator seeks to gather evidence against the doctor or nurse without the opportunity for reviewing the evidence.
- The Boards then send a settlement document to the professional, saying either sign it or we will file charges.
- The professionals say, you're wrong about your conclusions, but in fairness tell me what you base those conclusions on.
- The Boards then say no, sign the settlement agreement, with all its bold conclusions but no you can't see why we think you did anything wrong.
- The professional then goes and finds an attorney.
- The attorney then says to the board's attorney; show me the evidence to back up the bold conclusions in the SA.
- The boards refuse.
- The charges inevitably are filed.
- Meanwhile, assuming some of what the Board concludes may be true and the public is put at risk.
- Then we begin the lengthy discovery process to determine the facts.
All professionals should have the advice of an attorney before talking with the investigator. The reason is simple, this is when the Board comes up with the set of facts they will use to create the SA. What they are doing with the interview process is to get admissions from the professional. They aren't trying to settle anything, it's a one-sided process and it's not on the side of the professional. In my opinion it's very unprofessional.
Here is what you need to know. The ramifications of this process are punitive in nature, meaning they can put you out of business, so why don’t you hire a lawyer before being interviewed? You should.
As a licensed professional here is what you need to understand about this process. The Boards, either medicine or nursing, send their investigators to interview you. They then draft a settlement agreement and send it to you asking you to sign it while providing no proof. So why help them if they have no intention of sharing what they've learned and believe to be the facts if all that is going to happen are charges being filed?
When the SA arrives you’ll review it and will probably disagree with the facts and the conclusions the Board reached. The Board will reach the conclusion you’ve practiced in an unprofessional manner, or you were dishonest or you have a substance abuse problem or that you’ve slept with one of your patients. These allegations may not be true. You will read these charges and be appalled that they can just send this to you with no proof and ask you to sign these documents. The Board will then set a deadline for you to sign the Settlement Agreement or they will publicly file the charges. At that point you will feel the pressure being brought down on you and will realize talking to them without the counsel of an attorney was a mistake.
You will review the SA again and wonder how they could arrive at the conclusions they did. Feeling panicky you’ll seek the services of an attorney. The two of you will review the SA and when you read the factual conclusions you will disagree and want proof to fully understand the conclusions so you can make an educated and informed decision about what they say you did wrong and how they are wrong. You will want to explain further but no one will be listening because the SA is full of conclusions and will have no facts to back it up.
The Board’s lawyer will refuse to provide any information, again pointing out they intend to file charges if you don’t sign the SA. But how can you sign the SA without any proof that the charges are accurate? You can’t, you won't sign the SA and they will file the charges. You will not understand how they can do this; make these allegations, without providing evidence to support the allegations. They won’t provide this information and will then simply file the charges. I have to wonder how many doctors and nurses simply give in and sign the “Settlement Agreement”. None of this is easy and the process makes it that much harder.
This is America isn't it?
When I’m involved as an attorney I always ask for proof saying my client can’t sign anything and agreeing to any sort of settlement until we see your proof. Conclusions alone are not proof of wrongdoing or misguided judgment. Important issues are at stake that involves the professional’s reputation as well as the public’s safety. Proof is part of the American system of justice. These Boards never provide the proof, they simply file the charges and then we get the file, but only after the doctor and nurse have to read their names in the paper with conclusions that may or may not be true. It’s embarrassing to say the least and does damage to a professional reputation that many times the professional never recovers from.
We do as much damage control as we can, but I often wonder if it's ever enough. And although limited we still do everything in our power including issuing a statement by the attorney advising the public to refrain from drawing any conclusions until the State has provided proof of its allegations. In the cases where professional incompetence is alleged, more often than not it’s simply a matter of judgment. The professional is called upon to make a decision based on the best medical evidence they have with a difficult condition to diagnose and an incomplete history that makes the decision all the more exasperating. What we all need to keep in mind is that anyone can be a Monday morning quarterback – hindsight is 20:20. It’s easy to sit in a hearing room after a bad result and pick out at the record. It’s much harder to make medical decisions in real time with real patients all under stress. And keep in mind this one patient is not the patient of the physician or nurse.
We support our medical professionals (and the Boards) when they are charged by the Iowa Board of Medicine and Iowa Board of Nursing we come to their legal defense. I'm not here to blame anyone, but this system is flawed, so protect yourself by hiring an attorney before you give them the opportunity to conclude you made a serious mistake. Let us help you with defending your license. We can be contacted at 515-222-1110 or send me an email at [email protected].