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Professional Licensing and Appeals Litigation

An Overview

The greatest assets healthcare professionals possess are their licenses to practice their chosen disciplines. State licensing boards have been trending toward imposing stricter licensure requirements for years, and those boards have also become far more vigilant in monitoring their licensees’ conduct and imposing disciplinary action—including license suspension or even revocation—when a licensee’s conduct fails to comport with the professional standard. That standard relates not only to the care healthcare professionals provide, but also to their interpersonal behavior and allegations of fraud and abuse.

Representative Matter: A DBS attorney won dismissal of a disciplinary complaint concerning a patient death that was brought against the treating physician at the Board of Registration in Medicine.

Healthcare litigation can arise in many different contexts in the licensing setting, including appealing the denial of a license, resisting state board efforts to impose disciplinary action, and, in jurisdictions where the licensing board maintains a data repository of information on each licensee, petitioning the board to correct or clarify potentially damaging information. And while these types of cases can, in certain circumstances, find their way into court, the vast majority of professional licensing litigation plays out in the administrative setting before the state licensing boards.

For example, one of the primary functions of licensing boards is to monitor the conduct of its licensees. In doing so, most healthcare professional licensing boards proscribe a lengthy list of conduct by its licensees including any violations of law (criminal or even state regulations), drug and alcohol related conduct (e.g., practicing while intoxicated or impaired by drugs, being habitually intoxicated or addicted to drugs), and other dishonest conduct (e.g., cheating on examinations, or aiding someone in unlicensed practice). Many state boards also encourage, or in some cases require, individuals (including the licensees’ peers) and facilities to report such conduct-based violations so the board can conduct an investigation. Given the breadth of actions that are considered misconduct, and the number of people and facilities who are scrutinizing licensees, complaints and reports to the board are as frequent as ever.

Whenever complaints and reports are lodged with the state board, the subject licensees will quickly find themselves in the position of having to file a written response or even appear at an in-person hearing to defend themselves or else face the very serious prospects of having their license suspended or, in some cases, revoked (among other penalties). Because licensees are often fighting for their livelihood before state boards by trying to prove their innocence, board licensing and disciplinary proceedings often take on some of the characteristics of a criminal trial. In this sense, licensees facing serious discipline issues should consult with counsel early, and ensure that they select counsel who has both healthcare and criminal litigation experience.

Representative Matter: A DBS attorney won reinstatement for a physician whose medical license had previously been denied by the Board of Registration in Medicine.

Given the level of scrutiny currently imposed on healthcare professionals, and the high stakes that are involved any time license suspension or revocation is a possibility, caution is almost always the best possible approach for licensees. But because even a small, momentary lapse in judgment—or, in some cases, merely an allegation of a lapse in judgment—can affect one’s license status and place a healthcare professional’s entire reputation and livelihood in jeopardy, healthcare professionals should always treat board licensing issues with the utmost seriousness by retaining (or at least consulting) an attorney who is experienced in navigating the quasi-judicial state healthcare licensing board processes at the first sign of a possible problem.

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