AARC Times August 2010 : Page 22

General Counsel For Whom the Board Tolls by Anthony L. DeWitt, JD, RRT, FAARC T ypically when clinicians get in trouble with their State Board of Respiratory Care, they do so in one or two predictable ways. The most common way is through a criminal charge and conviction, and the most common of criminal charges is a DUI/DWI offense. When a clini-cian gets arrested for a DUI/DWI, it usually does not trig-ger licensure action.However, if they get convicted of the crime and that conviction is entered on their record, it can cause the Board of Respiratory Care to take a look at their license. When there is a criminal conviction and the board seeks to impose discipline, the mere fact of the conviction is really all that’s needed to sanction the therapist. So, who needs a lawyer? A lawyer can help mitigate the pun-ishment and sometimes work out a better consent agreement with the board. But the first and best way to avoid this kind of licensure action is to not drink and drive in the first place. Sometimes the mere arrest of a clini-cian on charges related to a sexual or drug-related offense is enough to get the board to ask a court for an immediate suspension of the license. If criminal charges wind through the courts for months or years, the clinician does not get to practice during that time.It makes it hard for the therapist to make a living, but it also protects the public.Clinicians who have been wrongly accused must balance their need for a license against their need to remain silent to avoid making damaging statements. When a clinician is faced with a criminal complaint, a lawyer who prac-tices criminal law is the first thing the clinician needs. A good administrative lawyer will be necessary for the li-censure action, but that won’t have much value if the cli-nician is convicted on the underlying crime. 22 AARC Times August 2010 The terminator and the terminatee The other way that clinicians get to have a sit-down discussion with their peers on the board is when they are terminated from employment for a reason having to do with errors, mistakes, or malfeasance related to clinical patient care. Said another way, a clinician who gets fired because they’re tardy or because they are insubordinate is not a clinician that comes up on the board’s radar. But therapists who are fired because they showed up for pa-tient care duties while under the influence of drugs or al-cohol, or because they charted treatments on a patient after the patient was declared dead, will invite a visit from a board investigator. about the author… No right to remain silent Generally speaking, when a board Anthony L. DeWitt, JD, RRT, FAARC, is an attorney and a partner in the firm Bartimus, Frickleton, Robertson & Gorny, PC, and resides in Jefferson City, MO. He has also authored two books and numerous legal journal articles. This article is not a substitute for legal advice. investigator calls, most clinicians know why the investigator is calling; and their immediate reaction is to tell their side of the story, thinking that doing so will head off an investigation. All this really does is ensure that the board in-vestigator will look more closely. You should never speak to an investigator alone. Several years ago a former client fired an employee and the next day was raided by a state agency that found, in one particular location, evi-dence that made it look like the client had broken the law. His initial reaction was to tell the board investigator all about the employee he’d fired and how this was all a huge mistake. His actions made the case much more difficult to defend because investigators write down everything you say that hurts your case and somehow neglect to write down the things that help your case. For that reason, the far better ap-proach is to let your lawyer do your talking for you. If the board investigator wants to talk, that conversation

General Counsel

Anthony L. DeWitt

Typically when clinicians get in trouble with their State Board of Respiratory Care, they do so in one or two predictable ways. The most common way is through a criminal charge and conviction, and the most common of criminal charges is a DUI/DWI offense. When a clinician gets arrested for a DUI/DWI, it usually does not trigger licensure action. However, if they get convicted of the crime and that conviction is entered on their record, it can cause the Board of Respiratory Care to take a look at their license. When there is a criminal conviction and the board seeks to impose discipline, the mere fact of the conviction is really all that’s needed to sanction the therapist.<br /> <br /> <br /> So, who needs a lawyer?<br /> <br /> A lawyer can help mitigate the punishment and sometimes work out a better consent agreement with the board. But the first and best way to avoid this kind of licensure action is to not drink and drive in the first place.<br /> <br /> Sometimes the mere arrest of a clinician on charges related to a sexual or drug-related offense is enough to get the board to ask a court for an immediate suspension of the license. If criminal charges wind through the courts for months or years, the clinician does not get to practice during that time. It makes it hard for the therapist to make a living, but it also protects the public. Clinicians who have been wrongly accused must balance their need for a license against their need to remain silent to avoid making damaging statements.<br /> <br /> When a clinician is faced with a criminal complaint, a lawyer who practices criminal law is the first thing the clinician needs. A good administrative lawyer will be necessary for the licensure action, but that won’t have much value if the clinician is convicted on the underlying crime.<br /> <br /> <br /> <br /> The terminator and the terminatee<br /> <br /> The other way that clinicians get to have a sit-down discussion with their peers on the board is when they are terminated from employment for a reason having to do with errors, mistakes, or malfeasance related to clinical patient care. Said another way, a clinician who gets fired because they’re tardy or because they are insubordinate is not a clinician that comes up on the board’s radar. But therapists who are fired because they showed up for patient care duties while under the influence of drugs or alcohol, or because they charted treatments on a patient after the patient was declared dead, will invite a visit from a board investigator.<br /> <br /> <br /> No right to remain silent<br /> <br /> Generally speaking, when a board investigator calls, most clinicians know why the investigator is calling; and their immediate reaction is to tell their side of the story, thinking that doing so will head off an investigation. All this really does is ensure that the board investigator will look more closely. You should never speak to an investigator alone.<br /> <br /> Several years ago a former client fired an employee and the next day was raided by a state agency that found, in one particular location, evidence that made it look like the client had broken the law. His initial reaction was to tell the board investigator all about the employee he’d fired and how this was all a huge mistake. His actions made the case much more difficult to defend because investigators write down everything you say that hurts your case and somehow neglect to write down the things that help your case. For that reason, the far better approach is to let your lawyer do your talking for you. If the board investigator wants to talk, that conversation Should occur only with a lawyer present.<br /> <br /> Protecting the public<br /> <br /> The purpose of licensure is to protect the public from incompetent or dangerous practitioners.No state takes that duty more seriously than California, where therapist Efren Saldivar stained the reputations of thousands of clinicians when he pleaded guilty to killing as many as six patients at a Glendale, CA, facility. California’s board posts its disciplinary issue on its website, and reading through the consent decrees and licensure actions is a sobering experience. In analyzing these reports, the thing that stands out is that the majority of licensure actions related to criminal convictions are based on three discrete kinds of criminal activities: substance abuse offenses (DUI, DWI, possession and sale of controlled substances, etc.), sexual offenses (child pornography, etc.) and domestic abuse offenses.<br /> <br /> There is a good argument that the mere fact that someone drove in an impaired condition is not evidence of their unsuitability to practice respiratory care. However, the counterargument says that a clinician who cannot be trusted not to endanger lives on the roadways might not be trustworthy when lives are on the line in the hospital. Similarly, a clinician who strikes or assaults his spouse may be a terrific person around patients, but clearly they have anger-management issues that need to be addressed. The California board has laudably led the way in dealing with these kinds of issues.<br /> <br /> <br /> It is worth noting, of course, that whenever a clinician is disciplined, the price is steep. The costs of the investigation and the costs of monitoring and treatment programs may be more punishment than the imposition of a licensure censure or suspension. Add to that the costs of legal representation, and it quickly becomes obvious that avoiding trouble in the first place is the smartest bet.<br /> <br /> A question of competence<br /> <br /> A harder problem exists when it comes to issues of competence and gross negligence. Mere inattention does not rise to the level of gross negligence. Gross negligence is a deviation from the standard of care that is egregious in nature.These include falsifying treatment data, claiming to have done procedures not done, and repeated failures to follow a physician’s order. These are the kinds of misbehavior that can result in board sanctions. In one case in California, a clinician charted treatments on a patient who had died. In another, a therapist fell asleep while on duty in the neurological care unit and had to be awakened by supervisors. It was later discovered that while she was sleeping she claimed to have made ventilator checks and that the entries in the medical record were false. Another clinician simply refused to deliver medication that he charted he had delivered. In reading through the disciplinary accusations and orders, it’s hard not to ascribe many of these cases to sheer laziness on the part of the therapists.<br /> <br /> If called to appear before the board, either as a witness or a defendant, you should immediately obtain counsel. Professional liability insurance is available to clinicians, and many professional liability insurance plans provide coverage for licensure issues. Check with your insurer to determine if you have coverage for licensure issues.

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