Tag: physician

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.

Collis Law Group, Medical Board, nurses, physicians, reporting, State Medical Board of Ohio, Uncategorized

New Rules for Reporting Abuse, Neglect, or Exploitation of Adults

On September 29, 2018, the Ohio Department of Job and Family Services (JFS) issued a new version of Rule 5101.63 that expands the list of individuals required to report suspected elder abuse. Now, any individuals licensed under Chapter 4731, those licensed to practice medicine and surgery, or Chapter 4723, registered nurses and licensed practical nurses, who have reasonable cause to believe that an adult is being abused, neglected or exploited shall immediately report such belief to their county JFS department, or they may face criminal charges.

The report can be oral, but the department may request a more formal, written report. Anyone who makes a report of abuse is immune from civil or criminal liability, unless they act in bad faith or with malicious purpose. ORC 5101.63(E) provides that an employer may not discharge, reduce benefits/work privileges, or take any other detrimental action against an employee for making a report of abuse.

You can download the related guides through JFS Forms Central (http://www.odjfs.state.oh.us/forms/) using these form numbers: JFS 08097 – Understanding Elder Abuse: A Guide for Medical Professionals and JFS 08098 – Understanding Elder Abuse: A Guide for Ohioans. ODJFS will develop training materials about identifying and reporting elder abuse.

The county JFS departments will be available to receive reports of abuse 24/7. If you have any questions about this new rule change, please contact Beth or Todd Collis at (614) 486-3909.

Medical practice in Ohio, self prescribing, State Medical Board of Ohio, Uncategorized

Ohio Physicians considering retirement should make the decision voluntarily and prior to being compelled to retire by the State Medical Board of Ohio

Questions often arise as to when it is appropriate to retire from the practice of medicine.  In many instances, physicians who are happy and healthy do not want to consider retirement.  Many physicians have told me that they have devoted their entire life to their medical practice and that, because they do not have any other hobbies, skills, or interests, they desire to continue to practice medicine. Additionally, physicians have told me that they are concerned that they may not have the financial means to stop working. Finally, many physicians are concerned that they will miss the daily interaction with their staff and their patients.

The State Medical Board of Ohio (“Medical Board”) does not have a specific retirement age.  A Physician with a valid license to practice medicine in Ohio may continue to do so for so as long as they are mentally and physically fit to practice and comply with Medical Board laws and rules.  However, if the Medical Board has reason to believe that a physician is unfit to practice medicine, the Medical Board has the legal authority to order a physician to a medical or mental health evaluation.

Ohio Revised Code Section 4731.22(B)(19) provides:

“(B) The board, by an affirmative vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend an individual’s certificate to practice or certificate to recommend, refuse to issue a certificate to an individual, refuse to renew a certificate, refuse to reinstate a certificate, or reprimand or place on probation the holder of a certificate for one or more of the following reasons:

(19) Inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills.

In enforcing this division, the board, upon a showing of a possible violation, may compel any individual authorized to practice by this chapter or who has submitted an application pursuant to this chapter to submit to a mental examination, physical examination, including an HIV test, or both a mental and a physical examination. The expense of the examination is the responsibility of the individual compelled to be examined. Failure to submit to a mental or physical examination or consent to an HIV test ordered by the board constitutes an admission of the allegations against the individual unless the failure is due to circumstances beyond the individual’s control, and a default and final order may be entered without the taking of testimony or presentation of evidence.

For the purpose of this division, any individual who applies for or receives a certificate to practice under this chapter accepts the privilege of practicing in this state and, by so doing, shall be deemed to have given consent to submit to a mental or physical examination when directed to do so in writing by the board, and to have waived all objections to the admissibility of testimony or examination reports that constitute a privileged communication. (emphasis added)

If the Medical Board has reason to believe that a physician is unable to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, a formal disciplinary action may be commenced.  This action may include (but is not limited to) ordering the physician to undergo a mental and/or physical examination.  Failure to submit to a mental and/or physical examination as ordered by the board constitutes an admission of the allegations against the physician, unless the failure is due to circumstances beyond the physician’s control.

On the basis of the mental and/or physical examination, the Medical Board can require the physician to submit to care, counseling, or treatment by physicians approved or designated by the Medical Board as a condition for reinstatement to practice.  The physician will receive an opportunity to demonstrate to the Medical Board their ability to resume practice in compliance with acceptable and prevailing standards under the provisions of the individual’s certificate.

In order to suspend a physician’s medical license, or to recommend retirement, the Medical Board must find that the physician’s continued practice, “presents a danger of immediate and serious harm to the public.”

In the past few years, we have seen the Medical Board order certain physicians to submit to a mental and/or physical examination. Based on the result of those examinations, the Medical Board has either suspended the physician’s license or requested that they enter into a “voluntary” permanent retirement of their medical license.

As always, if you have 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 LLC at 614-486-3909 or email me at beth@collislaw.com.

State Medical Board of Ohio

Are you resilient enough to be a physician?

As most physicians will tell you, it takes a lot more than understanding chemistry or being a good test taker to be a good physician. It takes being willing to work hard, being able to face adversity, and staying calm in a crisis situation. It takes being resilient.  I often wonder if medical students and medical residents are being challenged and taught the appropriate skills to be an accomplished physician.

In my practice, I represent physicians who are being investigated by the State Medical Board.  I also regularly represent residents who face discipline in their residency program or who are seeking licensure for the first time.  For most of my clients, an investigation in their practice by the State Medical Board may be the first time they have ever been questioned by a person in authority or “called on the carpet” for their actions.   Based on this new experience, it is interesting how they react.

A Board investigation is an incredibly stressful time for the physician. Their entire professional livelihood is on the line and any discipline that is imposed by the Board will have significant ramifications to their job, hospital credentialing status, third-party payor status, board certifications and may affect other state licenses.

Investigations by the State Medical Board do not have a statute of limitations and, once the Board starts an investigation, it is not limited to just the scope of the complaint.  The Board may review all aspects of the physician’s practice. In addition, while conducting an investigation, the Board can order the physician to undergo a chemical dependency evaluation or a mental or medical evaluation to determine if they have a condition that may affect their ability to practice medicine.

In order to get through a Medical Board investigation, the physician needs to be patient, cooperative and still maintain the same level of professionalism in their practice while seeing patients. This calls for resiliency on the part of the physician.

Physicians hold patients’ lives in their hands. They need the intelligence, executive function skills, and downright grit to maintain their composure in an ever-changing medical field. So, before entering medicine or if you are a practicing physician, I think it is important to consider .. are you resilient enough to be a physician?

As always, if you have any questions about this post or the State Medical Board of Ohio, please feel free to contact me at (614) 486-3909 or email me at beth@collislaw.com.