Professional Malfeasance / Discipline
You go into your office and see the day’s mail that your staff has stacked neatly in the middle of your desk. You nonchalantly pick it up and start to go through the assortment of multicolored envelopes, weeding out the ubiquitous ads and “offers.” But then, one letter in particular catches your eye. The non-descript envelope is a light tan color like many others, but what holds your attention is the return address – it is from the State Board of Medical Examiners (or Nursing, or Veterinary, or Professional Responsibility, etc.). You quickly search your memory and determine that it is not time to renew your license so you wonder what they could possibly want. As you start to open the envelope, your pulse quickens a bit and your mouth starts to feel dry. As you read the enclosed letter a sinking feeling overwhelms you – there has been a complaint filed with the Board; you have been accused of professional malfeasance; you may lose your license, your job, your livelihood; and you have just 10 days to respond to the accusations and tell your side of things — if you do not respond, they will assume the complaint is 100% legitimate and proceed with disciplinary action. All at once you are seized by anger, panic, despair. What to do? You want this to go away as quickly as possible so the best thing to do, you think, is to sit down and write out a detailed letter that fully explains your side – surely the Board will listen to one of its own. Once they hear your explanation, you believe that surely, they will come to reason and this will all go painlessly away and your crisis will be over. You then . . . .
Do you think that this could not happen to you? You do a good job, your clientele loves you, nobody is unhappy with you or your work that you know of, so, of course this could never happen to you. Wrong, wrong, wrong! Complaints, frivolous and legitimate, are filed by patients/clients every day against their doctor/lawyer/dentist/nurse/veterinarian/architect/CPA/ etc. Even non-clients/non-patients may file complaints – people that you have never seen or spoken with on a professional basis – a jilted lover or an angry employee perhaps. The Internet makes filing a complaint against a professional very, very easy – just a few clicks of the mouse and your nightmare has just begun. Try a Google search for “complaint” and “[insert any profession]” and you will be amazed at the myriad of sites to assist the consumer in reaching the State Board to complain about you. It is sooo easy to file a complaint that it is frightening and in some cases the Complainor can even remain anonymous. As if the ease of making a complaint isn’t frightening enough, know this: as far as your Professional Board is concerned, you are GUILTY, everything said about you in the complaint is taken by them as the Gospel truth. It is up to you to prove that you are innocent. The Board investigator will be the perfunctory state employee. He has a set protocol to follow in conducting his investigation. He is NOT going to be your advocate; he is NOT your friend or colleague; and he is NOT here to help you. His primary goal is closing out the file. His job is to gather up the proof that you are guilty. Yes, the letter that you received is asking for your response, but it is really just an investigative tool so that you will tell him where he should be looking. This is an adversarial process meaning that it is you, alone, up against the State and all of its resources (i.e. money). In addition, to add insult to injury, if the State prevails, you will be stuck with a bill for the time the Board’s people spend on your matter.
However, you are not alone – we are on your side and we will stand by you at every stage of this harrowing process. The Number One, most important thing for you to do right now is: DO NOT RESPOND to their letter. We all have seen “Law & Order” on television at some time or other and have heard the officers read the “perp” his rights, the standard warning to the accused mandated by the U.S. Supreme Court in Miranda v. Arizona. Part of the Miranda warning is “. . . everything that you say can and will be used against you in a court of law.” The same holds true for you as well. The Board will use your letter of response to the complaint against you in any way that they can. However, if the response comes through your legal counsel, it cannot be used against you. We have the experience and we know how to respond to these investigation letters, you do not.
The Board investigator may request an interview so that you all can sit down and work things out quickly and easily. He may suggest that getting the lawyers involved will only make it worse, increase expenses and if you have not done anything wrong, why would you need a lawyer in the first place. Do not be intimidated and do not get sucked into this trap. It is your right, conferred by the U.S. and State Constitutions and affirmed by the U.S. and State Supreme Courts, to have legal representation at every stage of this process; furthermore, your exercise of your right to counsel cannot be used to infer that you are guilty of any misconduct. You need us representing you from the day that you receive the first letter from the Board.
You have a lot to lose, much more than you may think. First of all, your license to practice your profession is at risk. Also, if you lose your license or are suspended in one state, other states will similarly revoke or suspend any professional license that you may hold there or they will refuse to grant you a license. You may be denied coverage by your professional liability insurer for any acts covered by the complaint and you may be unable to get Professional Liability Insurance in the future, if and when your license is cleared or reinstated. You may be denied the right to participate in various insurance programs — federal, state and private such as Medicare or Tenncare. You may be expelled from or denied the opportunity to join various professional organizations. You may find yourself the defendant in a civil or criminal action if the Board finds you “guilty” of the alleged misconduct. You may be fined several thousand dollars. You may be billed for the expenses and the time spent by the Board in investigating and prosecuting this complaint. If you are merely suspended, how long can you and your family survive before you lose your home, your savings, your retirement, etc.; will your practice wait or will you lose it too?
You need us to be your advocate. When you call our office, the receptionist will take your information and then one of the attorneys, probably Dr. Carter, will call you back. You will be asked several questions and you should be open and honest – this conversation is strictly confidential. We will need to ascertain that we do not have a conflict of interest or some other issue that would preclude our representation of you. In the likely event that there are no conflicts, we will next need to meet with you to execute a “Contract of Representation.” At that time we will also notify the Board of our representation of you. At that point, the Board will no longer be contacting you; they should deal exclusively through us. We will need to meet to get various documents from you. We will also need to get a check for our retainer. The retainer will be deposited in our IOLTA trust account for safekeeping and we will pay out any case expenses against it. We will also be charging an hourly rate for our time and drawing against the retainer for that. We will send you monthly accountings and we may have to ask you from time to time to replenish the retainer funds. This will all be spelled out in the “Contract of Representation.”
This may sound like a daunting and expensive process and even though we cannot guarantee the outcome, in the end you will be much better off than if you should try to go this alone. It is always best if we get involved at the very beginning, but we can join in at just about anytime. Dr. Carter has experience in dealing with several of the various Boards. While he lives in Knoxville, he has affiliations in Nashville, Memphis and Chattanooga and he is willing to travel anywhere in the state to come to the aid of a fellow professional. If you are facing disciplinary action or investigation by your state Board, call us today to arrange a confidential consultation – 865-951-7180 or Toll Free 1-800-821-0423.