Disciplinary Action – Ohio Medical Board Defense Counsel Blog

Disciplinary Action, Investigation, Medical Board, Misdemeanor conviction, physicians, State Medical Board of Ohio

Admissions to Board Investigator Can Be Used Against Physician in Criminal Trial

On December 15, 2020, the Ohio Supreme Court ruled 6-1 that a physician’s admissions made to an Ohio Medical Board investigator can be used against the physician in his criminal trial.

In 2017, three patients accused Dr. James Gideon of inappropriate touching during office visits. Gideon told Bluffton police he did not inappropriately touch any patients. Subsequently, however, an Ohio Medical Board investigator made an unannounced visit to Gideon’s office. Gideon, who was aware of the Ohio Medical Board legal requirement to cooperate with and provide truthful answers to the investigator, admitted to “touching certain areas on the patients and succumbing to temptation”. The investigator provided these admission to Bluffton police.

Gideon was charged with three misdemeanor counts of sexual imposition. At trial, he argued that the statements he made to the investigator should be suppressed based on the Fifth Amendment protection from being forced to incriminate himself.

The trial court did not suppress Gideon’s incriminating statements because it found that Gideon voluntarily made the statements to the investigator. Gideon was found guilty in all three cases and was sentenced to 180 days in jail.

On appeal, the appeals court ruled that the trial court should have suppressed the incriminating statements because his statements were not voluntary.

Upon review, the Ohio Supreme Court reviewed that the Fifth Amendment to the U.S. Constitution includes the right to remain silent where a person’s replies might be used against the person in future criminal proceedings.

The Ohio Supreme Court held that, in order to determine that Gideon’s statements were coerced in violation of his Fifth Amendment rights, Gideon had to demonstrate that (i) he subjectively believed that failure to cooperate with the investigator would lead to the loss of his license, and (ii) his belief that he was being threatened was objectionably reasonable by providing some evidence of pressure beyond merely directing him to cooperate in the investigation. The Ohio Supreme Court found that Gideon’s belief that he was being threatened was not objectively reasonable under the facts and circumstances of the investigation.

Health care and other professional licensees in Ohio must be aware that information provided to an investigator – whether that is an investigator employed by the Medical Board, Nursing Board, Pharmacy Board, or any other board or agency – can be used against the licensee in a disciplinary action and in a criminal proceeding. Legal counsel is recommended for any licensee in connection with any Board investigation or disciplinary action.

If you have any questions about this article or the State Medical Board of Ohio, please feel free to contact attorney Beth Collis at (614) 628-6945, or attorney Todd Collis at (614) 628-6962.

Disciplinary Action, Medical Board, Medical practice in Ohio, physicians, reporting, Uncategorized

Physicians: Pay Attention to Supervision Agreements

A supervision agreement must provide that the physician agrees to supervise the physician assistant and the physician assistant agrees to practice under that physician’s supervision.

A supervision agreement must provide that the supervising physician is legally responsible and assumes legal liability for the services provided by the physician assistant.

A supervision agreement must be signed by the physician and the physician assistant.

a. If a physician assistant will practice within a health care facility, the supervision agreement must include terms that require the physician assistant to practice in accordance with the policies of the health care facility; and/or

Collis Law Group, Disciplinary Action, License suspension, Medical Board, Medical practice in Ohio, Revocation, State Medical Board of Ohio, Uncategorized

The Differences Between Suspension, Permanent Revocation and Non-Permanent Revocation of a Medical License by the State Medical Board of Ohio

The State Medical Board of Ohio (“Medical Board”) is authorized to take disciplinary action against a licensee based on a violation of Ohio Revised Code Section 4731.22(B). Discipline can include, but is not limited to, suspension, permanent revocation and non-permanent revocation of a medical license.

A suspension results in the loss of the license to practice medicine for either an indefinite or a specified period of time. The licensee may apply for reinstatement of the medical license following completion of all terms and conditions required by the Medical Board for reinstatement of the license.

A non-permanent revocation results in the loss of the license to practice medicine. The licensee may re-apply for licensure.

A permanent revocation results in the loss of the license to practice medicine. The licensee is forever barred from being licensed to practice medicine.

The Medical Board’s Disciplinary Guidelines provide maximum and minimum penalties for certain offenses: http://med.ohio.gov/Portals/0/Disciplinary%20Guidelines%20rev.%2006-13-2018.pdf?ver=2018-06-13-143928-823. However, the Medical Board is not bound by the Disciplinary Guidelines and may impose any sanction authorized by law including, but not limited to, permanent revocation.

Although a licensee whose license to practice medicine has been non-permanently revoked may re-apply for licensure, a non-permanent revocation is viewed as a higher level of discipline than a suspension. The Medical Board typically imposes non-permanent (and permanent) revocation for the most serious violations of its laws or rules.

The Medical Board meets the second Wednesday of each month and reviews all disciplinary matters in an open forum. The Medical Board’s monthly Agenda can be found at the Medical Board’s website at: http://med.ohio.gov/The-Board/Board-Meetings-Minutes.

If you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at Collis Law Group LLC at (614) 486-3909 or email me at Beth@collislaw.com.

Collis Law Group, Disciplinary Action, Investigation, Medical Board, Medical practice in Ohio, State Medical Board of Ohio, Uncategorized

Attorney Beth Collis quoted in Medscape article on Medical Board investigations

Attorney Beth Collis, of Collis Law Group LLC, was quoted in a Medscape article titled “The Dangers of a Medical Board Investigation: How to Protect Yourself”. In the article Ms. Collis addresses the 9,000 complaints that the State Medical Board of Ohio receives each year. “Many are minor or frivolous, such as allegations that the doctor or his staff was rude to the patient or family, billing questions, being forced to wait too long for an appointment, etc. The Board generally doesn’t take action in these cases and may not even inform the doctor of them.”

Ms. Collis also addresses how it is necessary for physicians to respond to Board investigations or inquiries. Ms. Collis warns physicians against ignoring inquiries from the Board, or from talking to the Board without counsel. “No complaint is too minor. Too many physicians think they don’t need a lawyer and can just talk the Board investigators into dropping the complaint. Doctors may sincerely want to help but they don’t understand the rules and pitfalls. They are often too chatty and explain things that weren’t even asked.” Legal counsel is recommended for any physician in connection with any Medical Board investigation or disciplinary action.

Read the article, written by Mark Crane, by clicking on the following link: https://www.medscape.com/viewarticle/899247_2

As always, if you have any questions about this blog or the State Medical Board of Ohio, please feel free to contact one of the attorneys at Collis Law Group LLC at (614) 486-3909 or email me at Beth@collislaw.com.

Confidential monitoring program, Disciplinary Action, Medical practice in Ohio, Notice of Opportunity for Hearing, State Medical Board of Ohio, Uncategorized

Ohio Medical Board Proposes Confidential Monitoring Program for Licensees With Mental or Physical Illness Other Than a Substance Use Disorder

The State Medical Board of Ohio (“Board”) has proposed rules for a new confidential monitoring program, which, if approved, is anticipated to be implemented later this year and the rules for which would be contained in OAC 4731-28, Mental or Physical Impairment.

The proposed program would be non-disciplinary and voluntary. The licensee’s participation in the proposed program would be governed by a written contract (called a participation agreement) between the licensee and the Board. The Board’s intent of the proposed program is to enable licensees, who would otherwise be subject to formal discipline, to avoid formal discipline for issues related to mental or physical illness.

Eligibility criteria for the proposed program includes, but is not limited to:

1) The Board may conduct any investigation necessary to evaluate the totality of circumstances, including requiring a physical or mental examination;

2) The individual must provide continuing authorization for the disclosure and release of information between the Board, the individual, and any other persons or entities involved in the evaluation, treatment or monitoring of the individual;

3) The individual must be willing to begin treatment or demonstrate that they have been significantly compliant with their established treatment plan;

4) Any individual that has been issued a Notice of Opportunity for Hearing that is pending is not eligible; and

5) There is no information indicating that allowing the individual to participate in the proposed program will create a substantial risk of potential harm to patients.

As proposed, OAC 4731-28-04 authorizes the Board to disqualify a participant from the proposed program for any alleged violation of their participation agreement, as determined by the sole discretion of the Secretary and Supervising Member, and shall constitute grounds for the Board to take a public disciplinary action against the licensee.
Finally, as proposed, OAC 4731-28-05 outlines the conditions that the participant must complete to have the participation agreement terminated.

The full draft of the proposed rules may be found at the Board’s website at: http://med.ohio.gov/Laws-Rules/Newly-Adopted-and-Proposed-Rules/Confidential-Monitoring-Program.

Disciplinary Action, Fail to Report, Gunshot wounds, Medical practice in Ohio, Misdemeanor conviction, State Medical Board of Ohio, Uncategorized

Ohio Physicians: Do you know the Reporting Requirements?

Did you know that in Ohio, if you give aid to a sick or injured person, the failure to report to law enforcement any gunshot or stab wound that you have treated or observed, or any serious physical harm to a person that you know or have reasonable cause to believe resulted from an offense of violence, could result in a misdemeanor criminal charge and conviction?

Ohio Revised Code 2921.22(B) provides:
“Except for conditions that are within the scope of division (E) of this section, no person giving aid to a sick or injured person shall negligently fail to report to law enforcement authorities any gunshot or stab wound treated or observed by the person, or any serious physical harm to persons that the person knows or has reasonable cause to believe resulted from an offense of violence.”

Many are unaware of this reporting requirement. However, ignorance of the law is no defense.

Unless you have completed a residency program in emergency medicine, trauma, or surgery, you might have never heard of this reporting law. We are not aware that medical schools in Ohio routinely address this reporting law.

Often, patients who have been involved in or have been a victim of a crime, or an incident involving a gunshot or stab wound or serious physical harm, are unwilling or unable to truthfully explain to their medical professional how the injury occurred. In certain instances, it may be difficult to determine if an injury is the result of a crime of violence. Physicians should be aware that a patient who has been involved in a crime might try to tell the physician that they were “accidently” injured (for example, while hunting or by mistake).

If you have reasonable cause to believe that a gunshot or stab wound or serious physical harm resulted from an offense of violence, the failure report to law enforcement could result in criminal charges and conviction for misdemeanor, Failure to Report a Crime, and the conviction could result in a disciplinary action against your Ohio medical license (R.C. 4731.22(B)(11)).

As always, if you have any questions about this post or the State Medical Board of Ohio, please feel free to contact one of the attorneys at the Collis Law Group LLC, or contact me at beth@collislaw.com or 614-486-3909.

Disciplinary Action, License suspension, Medical practice in Ohio, State Medical Board of Ohio, Uncategorized

Ohio physicians: Suspension of your medical license may be just the start of your troubles

The State Medical Board of Ohio has the authority to take a disciplinary action against a physician’s professional license ranging from a Public Reprimand, to suspension, probation, or revocation. In addition, as noted in a previous post, effective September 29, 2015, the Medical Board was granted the authority by the Ohio General Assembly to issue a monetary fine against physicians (or Physician Assistants) found to be in violation of the Medical Practice Act (R.C. 4730 &4731). (See January 11, 2017 blog post about monetary fines).

In addition to a Medical Board disciplinary action, physicians should also be aware that if they are subjected to discipline by the Medical Board, they may also face additional repercussions to their professional practice and livelihood including, but not limited to:

• Public Record: All final actions of the Medical Board constitute a public record. The general public will be able to review a summary of the disciplinary action and a copy of the Notice of Opportunity for Hearing, Consent Agreement, or Adjudication Order with Report and Recommendation at the e-license verification page located at: https://elicense.ohio.gov/OH_HomePage.
• NPDB: Disciplinary actions of the Medical Board are reported to the National Practitioner Data Bank (NPDB). While the NPDB is not available to the general public, the following eligible entities have access to information on the NPDB: The Department of Health and Human Services, hospitals, health centers, health plans, medical malpractice payors, and state licensing boards. A health care organization can run a continuous query on practitioner reports. Therefore, as soon as you receive discipline from the Board, it is likely your employer will learn about it.
• DEA action: A physician’s Drug Enforcement Administration (DEA) license will be suspended during any period of medical licensure suspension. Criminal fines and/or imprisonment are available for any person who knowingly or intentionally (i) possesses a listed chemical with the intent to manufacture a controlled substance without proper registration; (ii) possesses or distributes a listed chemical with knowledge or a reasonable belief that the listed chemical will be used to manufacture a controlled substance; or (iii) evades the Controlled Substance Act’s recordkeeping and reporting requirements by receiving or distributing listed chemicals in small units. Violators of the aforementioned provisions may also be enjoined for up to ten years from handling listed chemicals. The physician must apply to have the DEA reinstated after his or her medical license is reinstated;
• Hospital Privileges: Hospital privileges could be suspended or revoked;
• Board certifications: Board certifications that the physician has may be limited, suspended, or revoked;
• Sister State Discipline: Other state medical boards in which the physician is licensed can institute disciplinary actions based on the Ohio matter;
• Medicare/Medicaid participation: A physician’s participation as a Medicaid/Medicare provider may be subject to revocation, thereby excluding them from obtaining reimbursement for services rendered to Medicare/Medicaid patients;
• Third Party Payors (Insurance Company participation): Participation as an approved provider for private insurer(s) could be terminated, thereby excluding the physician from obtaining reimbursement for services rendered to patients insured by such insurer(s); and
• Bureau of Worker’s Compensation: The BWC can revoke a physician’s certification in the Health Partnership Program—where they participate in a managed-care program for injured workers—if the provider has a misdemeanor committed in the course of practice, involving moral turpitude, or a conviction that is either a felony, cited under the Controlled Substances Act, or is an act involving dishonesty, fraud or misrepresentation. OAC 4123-6-02.2(B)(5).

While each case is different and each physician who is subjected to a disciplinary action by the Medical Board may not be subject to any or all of these additional actions, it is important to understand and appreciate that a Medical Board action may not be the end of the issues that a physician faces when subjected to a Medical Board disciplinary action.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at the Collis Law Group at (614) 486-3909 or email me: Beth@collislaw.com.