Washington State Department of Health | WSDH | Credentials and Licensing | Complaints against Credentialed Health Care Providers and Applicants | Criminal Charges, Convictions and Health Care Licenses| A Lawyer’s Perspective
As lawyers and members of a firm who involve themselves in the investigation, litigation and sanction process of the criminal and administrative systems, we know the decision to give a statement to any investigatory personnel should be approached carefully. We know the importance of properly weighing, positioning and understanding a case before committing to a position. Being aware, informed and properly counseled becomes especially important when the administrative investigation has criminal implications or a criminal investigation has administrative implications for a Washington State health professional’s license or future license. Any situation were a disciplining authority determines or has cause to believe that a licensure holder committed a crime as a result of its investigation SHALL report to the Washington State Department of Health and, similarly, criminal convictions of any felony are reported by the Washington State Patrol (rcw criminal department of h… to the Washington State Department of Health. Our lawyers have the knowledge, experience and expertise to help our clients plan ahead, think strategically and make the right decisions under pressure.
- The Washington Administrative Code that applies to health care professionals makes it clear criminal charges or conduct, if proved or admitted to, are presumed “conclusive evidence” of the facts that make up the elements of the crime (18.130.180) for purposes of an administrative sanction against a Washington State Health care provider’s license.
- The Washington Administrative Code that applies to health care professionals also makes it clear the administrative sanction process is not bound by any fact determinations made in the criminal process and can conduct its own independent investigation (18.130.050).
Practically and logically, this means you and the lawyers on your legal team must anticipate how best to position your situation and case in two different adversarial settings, with two different proof standards, two different obligations to participate in the investigation and two different end goals. For example:
- In the criminal punishment setting, the prosecution is interested in whether a crime can be proven beyond a reasonable doubt and those charged are afforded the presumption of innocence.
- In the administrative punishment setting, the prosecution is interested in whether unprofessional conduct can be proven by clear and convincing evidence with no such presumption.
- In a criminal law setting, the prosecution is primarily interested in punishing criminal conduct.
- In an administrative law setting, the prosecution is primarily interested in protecting the public and assuring confidence in the health care profession.
Typical Criminal Case Overlap
In our role as criminal defense attorneys and administrative law attorneys, we typically see overlap in any criminal investigation that includes illegal or legal drug or alcohol use or abuse, any charge that involving violence against another person, especially if it is labeled Domestic Violence, any case involving abuse of vulnerable adults or children, any case involving fraud or moral turpitude, or any case that involves allegations of sexual abuse. As a generality, if any criminal investigation includes any allegation raises an issue that can be termed unprofessional conduct according to the below definition, overlap is possible or likely and should be anticipated and planned for. If you are not sure, contact the lawyers in our office for a consultation. If any administrative investigation involves conduct that could be viewed as criminal under Washington law or Federal law, there definitely runs the possibility of overlap depending on the outcome of the investigation. Immediately call us if you’re concerned this may be your situation. The legal definition of unprofessional conduct for the purposes of health care professionals who practice in Washington is:
(1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person’s profession, whether the act constitutes a crime or not. If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such a conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the guilt of the license holder of the crime described in the indictment or information, and of the person’s violation of the statute on which it is based. For the purposes of this section, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;
(2) Misrepresentation or concealment of a material fact in obtaining a license or in reinstatement thereof;
(3) All advertising which is false, fraudulent, or misleading;
(4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed;
(5) Suspension, revocation, or restriction of the individual’s license to practice any health care profession by competent authority in any state, federal, or foreign jurisdiction, a certified copy of the order, stipulation, or agreement being conclusive evidence of the revocation, suspension, or restriction;
(6) Except when authorized by RCW 18.130.345, the possession, use, prescription for use, or distribution of controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;
(7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;
(8) Failure to cooperate with the disciplining authority by:
(a) Not furnishing any papers, documents, records, or other items;
(b) Not furnishing in writing a full and complete explanation covering the matter contained in the complaint filed with the disciplining authority;
(c) Not responding to subpoenas issued by the disciplining authority, whether or not the recipient of the subpoena is the accused in the proceeding; or
(d) Not providing reasonable and timely access for authorized representatives of the disciplining authority seeking to perform practice reviews at facilities utilized by the license holder;
(9) Failure to comply with an order issued by the disciplining authority or a stipulation for informal disposition entered into with the disciplining authority;
(10) Aiding or abetting an unlicensed person to practice when a license is required;
(11) Violations of rules established by any health agency;
(12) Practice beyond the scope of practice as defined by law or rule;
(13) Misrepresentation or fraud in any aspect of the conduct of the business or profession;
(14) Failure to adequately supervise auxiliary staff to the extent that the consumer’s health or safety is at risk;
(15) Engaging in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health;
(16) Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;
(17) Conviction of any gross misdemeanor or felony relating to the practice of the person’s profession. For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;
(18) The procuring, or aiding or abetting in procuring, a criminal abortion;
(19) The offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine, or the treating, operating, or prescribing for any health condition by a method, means, or procedure which the licensee refuses to divulge upon demand of the disciplining authority;
(20) The willful betrayal of a practitioner-patient privilege as recognized by law;
(21) Violation of chapter 19.68 RCW;
(22) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the disciplining authority or its authorized representative, or by the use of threats or harassment against any patient or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action, or by the use of financial inducements to any patient or witness to prevent or attempt to prevent him or her from providing evidence in a disciplinary proceeding;
(23) Current misuse of:
(b) Controlled substances; or
(c) Legend drugs;
(24) Abuse of a client or patient or sexual contact with a client or patient;
(25) Acceptance of more than a nominal gratuity, hospitality, or subsidy offered by a representative or vendor of medical or health-related products or services intended for patients, in contemplation of a sale or for use in research publishable in professional journals, where a conflict of interest is presented, as defined by rules of the disciplining authority, in consultation with the department, based on recognized professional ethical standards.
After reading this statute, it should become clear the definition and standards that apply to unprofessional conduct are broad and vague when compared to criminal charges, and, also carry a responsibility to be forthcoming in the investigation of a case. This obligation is in direct conflict with the typical stance in a criminal case, which presumes you innocent, puts the burden on the state to prove you guilty beyond a reasonable doubt and does not require forthcoming behavior.
Navigating the waters of criminal cases, which impact a client’s professional’s health care license, is complicated. Knowing what to expect and how to litigate a problem in both legal forums is necessary.
This firm of lawyers is a unique blend of litigation skills, experience, knowledge and temperament. Whether we are in the role of legal counsel, ambassador, negotiator, or litigator, we have years of experience resolving complex situations with our clients’ best interests in mind. Choosing incompetent, lazy or ineffective counsel can make your legal journey a long and difficult road. This firm is founded on a service, a blue-collar work ethic, teamwork and an intense dislike of losing. Call 206-708-7852 to set up an appointment to discuss your situation.