By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Our attorneys often receive calls from health care professionals regarding the possibility of representing them on short notice at a Board hearing or at a deposition related to a health care matter. Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result.
Formal Administrative Hearing vs. Informal Hearing.
If you desire to contest the facts alleged against you then you must state this in writing. If the material facts in a case are challenged by you, then the Board or the Department of Health (DOH) (note: all professional boards are under the DOH in Florida) must forward your case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge (ALJ) will be appointed to hold a formal hearing in your case.
This is the only way that exists for you to prove that the facts alleged against you are incorrect or that you are not guilty of the charges made against you. In fact, you do not even have to do anything in such a case. The DOH has the burden of proof and it has to prove the charges against you and the material facts alleged against you by clear and convincing evidence. Often, it is unable to do this at a formal administrative hearing.
However, because of the technicalities of evidentiary law and administrative law, we do not recommend that a non-lawyer attempt to represent himself or herself at such hearings. You can make technical mistakes (such as answering requests for admissions incorrectly) that severely compromise any defense you may have. We recommend that you always retain the services of an experienced health lawyer in any such matter.
What to Do If You Are at an Informal Hearing and You Desire to Contest the Material Facts of the Case (And Your Guilt or Innocence).
If you have been scheduled for an informal administrative hearing and you decide that you do want to challenge the material facts alleged against you in the administrative complaint (AC), file a written objection to proceeding at the informal hearing. State that you have discovered that there are material facts that you do desire to challenge and that you desire that the proceedings be converted to a formal hearing. File this with the Clerk of the administrative agency you are before (usually the department of health or the Agency for Health Care Administration (AHCA) and also send a copy to the opposing attorney and the executive director of the Board. Do this as early as possible and keep proof that you have actually and filed the written request.
If you are already at the informal hearing when you discover this, object to the proceedings on the record and ask to have the informal hearing be converted to a formal hearing where you may contest the material facts. State this as many times as reasonably possible.
To learn more about how to prepare for a Florida Board of Medicine informal hearing, click here to read my prior blog.
Visit our Areas of Practice page on our website to learn more about how we can assist you in Board Representation and other legal matters.
Don’t Wait Too Late; Consult with an Experienced Health Law Attorney Early.
Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.
The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians in investigations and at Board of Medicine hearings.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 or visit our website www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
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