This article will discuss only four of the fifty or so issues Walker Medical Law has dealt with so far in the year 2024. The matters are varied and cover many aspects of legal matters that physicians, nurses, and all medical care providers can encounter in their practice. Some of the cases were simply self-inflicted wounds that should have been avoided and, hopefully, by reading about these problems, people reading this article will know to make different choices in the future and not have to deal with the consequences. Other problems were actually manufactured against our clients by co-employees due to jealousy, discrimination on various grounds, or simply brought about by an employer who wanted to get rid of the provider. In any event, we did our level best to bring about the best possible result given the facts that were presented to us.
1. A medical provider had pleaded guilty to a drunk driving charge some years ago and then was arrested again on the same charge. While that charge was pending, there was a catastrophic injury to a patient which resulted in the provider leaving the practice and then being employed by a different practice. This all came to the attention of OPMC, and after we attended Interviews with the client, an agreement was reached in which the client continued to practice with a monitor and random toxicology testing. This result permitted the client to continue practicing at another facility without any interruption in the practice of medicine. These cases have to be handled very carefully as if they are not addressed correctly, the provider can end up being out of practice, with no income for a lengthy period of time, or being actually made to be basically unemployable due to this difficult situation.
2. Several different patients made a series of complaints against a physician, all with different subject matters. The issues included claims that money paid for a procedure that was not completed was not returned to the patient, that the Physician Monitoring Program had not been checked when prescribing a controlled substance, that the physician did not in fact perform a physical examination, etc. We had to very carefully examine, in minute detail, each of these claims in order to present a logical explanation for each event. Please note that multiple claims by multiple patients present difficulties in the defense of the client, as it can appear to OPMC that the physician might well have a fundamental problem, in that several patients are going to the trouble of filing a complaint. In this case, we managed to make clear explanations regarding each case and OPMC closed the file without taking any action. This was not an easy case, and it demonstrates how detail-oriented the defense presentation has to be.
3. A physician had a history of reporting to a hospital while being completely unfit to practice due to alcohol intake. That event ended with an admission to an emergency room for treatment of the alcohol event and the employer promptly terminated that physician’s employment. The physician voluntarily went into treatment with counseling and monitoring. By the time OPMC looked into the matter, the physician had been in treatment for about three years and was practicing in another state. OPMC wanted a Consent Order signed which would have been published on the National Practitioner Data Bank and sent to the Federation of State Medical Boards. This publication might well have caused the physician to be terminated from his/her present facility and/or caused health insurers to decide to remove the physician from the Approved Provider list and that would have caused a termination from employment. We felt this was unfair and to defend the client we arranged for an Independent Medical Examination of the physician. That IME was extremely favorable to the client, showing that the physician was not at all impaired and that the physician should be able to continue to practice. After much negotiation, we had the client enter into a Consent Order that specifically stated that the Order was non-disciplinary in nature, and would not be published on the NPDB or on the OPMC website, and would not be sent to the Federation of State Medical Boards. Due to this agreement, the physician can practice without fear of the repercussions that a public Order could have caused.
4. An LPN was accused of failing to notify a nurse about a prisoner’s fall in a state facility. After the prisoner later passed away, the Office of Professional Discipline initiated an inquiry. The Department intended to formally discipline the LPN, which would have resulted in a public notice on the OPD website and an entry in the National Practitioner Data Bank. These public disciplinary actions could permanently damage the entire career of the client, LPN. The first step in the process was for the LPN to attend an interview with OPD. These interviews are critical, as they provide the practitioner an opportunity to present their case and potentially end the investigation, avoiding any disciplinary action. In all cases, OPD refuses to allow the practitioner to see any of the documents that bear on the facts of the case, and that is what occurred in this matter, even though we asked that they be produced prior to the Interview. As a secondary source, we went on the internet and found a summary of the matter written by another State agency, and by doing that, we learned what some of the other participants in the matter had to say, and we were able to see some of the underlying documents. Armed with that data and the remembrance of the events by our client, we prepared for the Interview. We used all of the information that we had. and by doing so. we were able to fashion a coherent, factually-based, defense for the client. At the Interview, the client was prepared in such a way that all of the questions were answered, and those answers made sense and conformed with the facts in the case. Accordingly, within two months we received notice that the OPD investigation had been closed. That was the end of the matter. I can assure you that the client breathed a very large sigh of relief when the closure letter from the State was read.
The overriding point of this article is to demonstrate that careful planning and investigation prior to an Interview can lead to a result that allows the client to continue practicing his/her profession.
Of course, the goal is to avoid any disciplinary action altogether. However, in particularly challenging cases, it may be necessary to position the case strategically to secure an outcome that permits the client to continue practicing, even if some form of disciplinary record is unavoidable. At Walker Medical Law, we see an unending variety of situations, and each one is a challenge, as the consequences can be career-ending for the client. Obviously, careful and detailed preparation is required to put the case in the best possible position for the client.
