Florida physicians generally know quite well the reputational hits, hospital privileges risks, employment security risks, and potential professional malpractice liability associated with patient allegations of Baker Act abuse violations. However, a Florida physician's biggest risk when facing Baker Act accusations may be the physician's Florida Board of Medicine license. Lose your license to Baker Act charges, and you may lose everything else. Preserve your medical license, and you may suitably weather and overcome even the worst of allegations. Retain the Lento Law Firm's premier Professional License Defense Team now for your Florida Baker Act medical licensing defense. Call 888.535.3686 or complete this contact form now.
Baker Act Basics Related to License Discipline
Simply as a reminder of information that you, as a practicing Florida physician, already know well, the Baker Act is a Florida law intended to facilitate emergency services for the mentally ill, like emergency services for the physically ill. Since 1972, the Baker Act has authorized physicians to execute a certificate stating that a person they examined within the prior forty-eight hours meets the Baker Act's strict criteria for involuntary police pickup and transportation to a receiving facility for examination. The physician's certificate must state the observations on which the physician based that conclusion. As every responsible physician knows, the criteria for involuntary transportation and examination include that the person:
- is at least age eighteen and mentally ill;
- is unlikely to survive safely without supervision while having a history of failing to comply with mental health treatment;
- has engaged in at least one serious violent behavior or attempt at such behavior toward self or others, or has suffered at least two involuntary commitments or one forensic or correctional treatment in the prior 36 months;
- because of mental illness, is unlikely to accept recommended treatment and has refused voluntary services after explanation or cannot make that self-determination;
- is in need of involuntary outpatient services to prevent a relapse or deterioration likely to result in serious bodily harm to self or others or substantial harm to own well-being
- will benefit from involuntary outpatient services and has no other appropriate and available less restrictive alternatives.
Our Professional License Defense Team can help you advocate before Florida Board of Medicine disciplinary officials that your examination, assessment, and certification of a mental health patient was according to the Baker Act criteria and within your good faith immunity from civil or criminal liability.
Patient Baker Act Rights Related to Discipline
The problems that the Baker Act creates for physicians often arise out of the substantial patient rights the Act affords, at the same time that the Act grants extensive physician and police powers while imposing corollary physician and police responsibility. The Baker Act is a very lengthy and detailed statutory scheme, as it should be, given the substantial interference with patient dignity and citizen rights its abuse could entail. The Baker Act has a particularly lengthy statement of patient rights. Physician licensing issues before the Florida Medical Board may arise, directly or indirectly, out of allegations of the violation of those rights, including:
- the right to patient dignity;
- the right to quality patient treatment;
- the right to informed consent;
- the right to communicate freely with persons outside the facility;
- the right to receive visits from persons outside the facility;
- the right to report patient abuse;
- the right to care and custody of personal effects;
- the right to habeas corpus, to appear in court to advocate for rights;
- the right to civil damages from anyone violating these rights; and
- the right to a posted notice of these rights.
Let our highly skilled and strategic Professional License Defense Team attorneys represent you before the Florida Board of Medicine on disciplinary charges arising out of these Baker Act patient rights. We know the Florida professional licensing administrative rules, personnel, and procedures and can help you obtain your best disciplinary outcome.
Florida Board of Medicine Disciplinary Authority
The Florida Board of Medicine has ample statutory and regulatory authority to discipline your medical license if its officials find that you violated the Baker Act by abusing a patient or violating the patient's legal rights. Florida Statute Section 458.331 lists the grounds on which the Florida Board of Medicine may discipline a physician whom it has licensed. Those grounds include “[f]ailing to perform any statutory or legal obligation placed upon a licensed physician” and “[p]erforming professional services which have not been duly authorized by the patient.” As the following discussion shows in greater detail and by illustration, your alleged violation of the above Baker Act rights could fall under either of these grounds for your Florida Board of Medicine license discipline. Other statutes applicable not only to physicians but to healthcare providers more generally provide for the procedures under which the Florida Board of Medicine and other healthcare boards may impose discipline up to license suspension or revocation.
Florida Board of Medicine Disciplinary Reports
The Florida Department of Health publishes Florida Board of Medicine disciplinary actions and the discipline of other health professionals on its publicly accessible website. If you suffer Florida Board of Medicine discipline because of an alleged Baker Act violation, even discipline so little as a reprimand, then your healthcare employer, colleagues, supervisors, hospital credentials committees, patients, their family members, insurers, and the public will be able to discover your discipline. So will your own friends and family members. You may also have a duty to report your discipline to your employer and to other professional licensing boards through whom you hold a license. Because professional license discipline is something you must generally report on applications for a new license in another state, and state licensing officials search national databases for license discipline, you may not be able to get a medical license in another state.
Florida Board of Medicine Disciplinary Impact
In short, the impact of Florida license discipline for a Baker Act violation could be wide and deep. You may find your practice suspended, restricted, or curtailed in Florida and across the nation. You may lose your employment, employment income, employment benefits, practice, patients, and privileges. Along with it, you may lose important financial, personal, and family relationships and interests. Even if you preserve your Florida medical license, the Florida Board of Medicine could impose such conditions and restrictions, like practice limitations to certain patients, employers, locations, or supervision, remedial education or training, and medical and physical examination, counseling, and treatment, as to make your practice difficult, burdensome, or impossible to continue. Your far better course is to get our help fighting, defending, and defeating the Baker Act disciplinary charges.
Types of Baker Act Violations Leading to Discipline
You've seen above the Baker Act rights that a patient under your examination and certification has. Consider the following ways in which you might violate the Baker Act and how our skilled and experienced attorneys may be able to defend you against those charges.
Violation of Patient Dignity as Disciplinary Grounds
The Baker Act's first patient right is to dignity. The Baker Act expressly includes the right to dignity “at all times and upon all occasions, including any occasion when the patient is taken into custody, held, or transported....” The Act also prohibits the use of procedures, vehicles, facilities, or devices used for criminal suspects other than to protect the patient or others. Examples of violations may include a physician refusing to communicate with the patient, affording the patient the courtesy and care usually afforded, shouting, demeaning, name-calling, or undue physical restriction. We may be able to defend licensing disciplinary charges alleging dignitary violations based on evidence that you were not the responsible physician, your actions were necessary to protect the patient or others, your actions fell within the good faith immunity of the Baker Act, or that the allegations are false or exaggerated.
Violation of Quality Treatment as Disciplinary Grounds
The Baker Act's next patient right is to quality patient treatment. The Baker Act expressly includes that the treatment must be the “least restrictive appropriate available treatment” for the mentally ill patient's needs. A related Baker Act section requires quality treatment provided “skillfully, safely, and humanely with full respect for the patient's dignity and personal integrity.” Examples of violations could be if the physician uses or orders any method outside of the customary appropriate care, such as excessive, unnecessary, or unconventional restraints, painful, dangerous, invasive, or embarrassing electroconvulsive therapy, inappropriate family interventions, public shaming, or disabling drugs. We may be able to defend such disciplinary charges on the grounds that others misidentified you as the physician involved, your actions met the standard of care as other medical consultants confirm, or your actions were within the good faith immunity of the Baker Act.
Informed Consent Violations as Disciplinary Grounds
The Baker Act's next patient right is to informed consent. If the patient is competent enough to understand the communications, then medical care providers must use plain language to give the reason for treatment recommendations, their risks, benefits, and side effects, their duration, alternative care, and abundant other information. Otherwise, providers must inform the patient's guardian of the same information, seeking substitute informed consent. The Baker Act's informed consent requirements are lengthy and detailed, easy to miss, or mistake under the pressure of a mental health emergency involving a patient or public danger. Examples of violations may include simply ignoring the obligation to provide the information, giving incomplete information, not including options, ignoring or minimizing side effects, or giving the information when the patient is not competent without attempting to share the information with an available guardian. We may be able to defend such disciplinary charges based on your misidentification, your testimony, and the testimony of others showing that you did provide the information or the patient's incompetence and absence of available guardians.
Communication and Visit Restrictions as Disciplinary Grounds
The Baker Act's next patient rights are to communicate freely with persons outside the facility and to receive visits. The purpose of that right is presumably to ensure that the patient can complain to visiting relatives or friends of violations of Baker Act rights. Indeed, the same section affording communications and visits also guarantees the patient's right to report abuse. Another Baker Act section, guaranteeing the right to habeas corpus to appear in court to advocate for rights, reinforces that the facility must not unduly conceal or isolate the patient. Examples of violations could include holding a patient in isolation away from all visitors or others who might take and communicate abuse complaints or denying the patient a cell phone, telephone, tablet, computer, or other communication device to make calls to family members or friends and receive calls, in which the patient reports abuse. We may be able to defend you against such disciplinary charges by showing that you were not the examining and certifying physician, you were not responsible for the patient's care once examined and certified, and that others were responsible for the patient's facility placement and treatment.
Other Baker Act Violations as Disciplinary Grounds
Other Baker Act dignitary rights include the right to care and custody of personal effects and the right to a posted notice of all Baker Act rights. Other non-physician or even non-medical staff may be responsible for these property and facility-posting rights. Disciplinary officials are unlikely to charge you or any other physician for violations of these sorts, although patients, their family members, and their representatives sometimes cast broad aspersions, treating the physician as the captain of the ship for all other offenses alleged under the captain's watch. We may be able to defend these kinds of broad property or facility-related charges by showing your limited medical authority and responsibility,as well as the broader responsibility of others for property and facility posting.
Disciplinary Charges and Civil Liability
Because another Baker Act patient right involves the right to civil money damages from a person violating the Act, consider the relationship of civil liability to Florida Board of Medicine disciplinary charges. The Baker Act's civil liability provision undoubtedly attracts plaintiff's lawyers to represent mental health patients who claim Baker Act violations. Facing a civil action for malpractice and for Baker Act violations in Florida's civil courts may be a distinct possibility, more so than facing disciplinary charges. Plaintiff's lawyers generally collect no contingency fees for discipline. They instead maintain their patient's damages causes of action in court, not in Florida Board of Medicine administrative proceedings.
However, civil lawsuits for Baker Act liability and malpractice damages may nonetheless attract the attention of Florida Board of Medicine disciplinary officials. Indeed, committing malpractice is one of the many grounds for physician discipline that Florida Statutes Section 458.331 expressly enumerates. Florida Board of Medicine disciplinary officials, though, are also generally aware that malpractice cases can depend on close and uncertain judgments over the medical standard of care, as testified to in contradiction by competing retained medical experts. Disciplinary officials generally won't get in the middle of a closely contested malpractice case unless substantial evidence shows a clear disciplinary violation. That assertion would likely be one of our attorneys' strategic approaches to such disciplinary charges based on contested and uncertain malpractice allegations. Our attorneys know how to make that argument in disciplinary proceedings. We can also retain the appropriate medical experts in the disciplinary proceeding to show any absence of malpractice.
Minimizing Baker Act Violation Disciplinary Risks
You may be able to minimize the risk of Florida Board of Medicine disciplinary charges when you retain our experienced and strategic attorneys the moment you learn of Baker Act violation allegations. Your patient, your patient's family members, or a lawyer representative of the patient may notify you that they believe you violated the Baker Act. You may also receive the same information from your healthcare employer, colleagues, or others. Your response to that early notice may head off disciplinary charges, not to mention malpractice claims. We may be able to gather your information and documentary evidence to present to the patient, family members, or legal representative. We may be able to advocate and negotiate for the patient to forgo disciplinary allegations, whether because of exonerating and mitigating evidence you supply or because of the timeliness, sensitivity, and tone of your communication. Apologies without admission of responsibility may be appropriate if properly handled through our attorneys and may go a long way toward defusing the situation.
Defending Baker Act Violation Disciplinary Charges
Just because you face Florida Board of Medicine disciplinary charges alleging your Baker Act violations does not mean that you will suffer discipline affecting your medical practice and reputation. The Florida Board of Medicine must afford you constitutional due process in any disciplinary proceeding that threatens your property and liberty interest in your medical license and practice. Our attorneys know how to invoke the Florida Administrative Procedure Act protective provisions and other state laws, rules, and regulations for your best disciplinary outcome. We may be able to take the following actions in your defense under the available protective procedures:
- obtain, evaluate, and advise you as to the Florida Board of Medicine's detailed specifications of the charges and any supporting evidence the Board may present against you;
- timely answer the Board's charges in writing so that officials know your intent to defend and defeat the charges so that you do not suffer default and so that you have the full procedural rights the Administrative Procedure Act affords you;
- identify, obtain, organize, and present your exonerating and mitigating evidence showing that you did not commit the alleged violations and do not deserve any disciplinary sanction;
- request, arrange, and attend early conciliation conferences seeking the Board's voluntary dismissal of the charges and advocate and negotiate at those conferences for remedial relief rather than disciplinary outcomes;
- invoke your formal hearing rights as necessary, attend the formal hearing, present your defense witnesses and documentary evidence, cross-examine the Board's adverse witnesses, and challenge the Board's documentary evidence;
- prepare petitions for reconsideration and appeals if you have already lost your formal hearing, seeking review by higher agency officials;
- seek judicial review if you have already exhausted all appeals to show material error in your discipline due to bias, conflicts of interest, legal errors, or an outcome unsupported by material evidence or against the substantial weight of the evidence.
Retain Qualified Counsel for Disciplinary Defense
You should have already recognized that you need our skilled and experienced Professional License Defense Team attorneys for your best disciplinary outcome. Do not retain unqualified local criminal defense counsel. A disciplinary proceeding before the Florida Board of Medicine is an administrative proceeding instead of a civil or criminal court proceeding. The law, rules, customs, and conventions differ. A local criminal defense attorney is unlikely to know the peculiar administrative rules applicable to Florida Board of Medicine contested cases. Representation by an unqualified criminal defense attorney, civil litigation, real estate attorney, or family lawyer may do your defense case more harm than good.
Our Professional License Defense Team attorneys have the requisite law knowledge, administrative skills, and experience to handle your disciplinary case properly. Our attorneys also have the reputation and relationships to maintain the respect of Board of Medicine representatives and the knowledge of achievable outcomes to fashion appropriate non-disciplinary negotiated relief in the right cases. Trust our attorneys with your Florida medical license. Don't trust unqualified counsel.
Premier Disciplinary Defense Available
If you are a physician facing Florida Board of Medicine disciplinary charges over Baker Act violations or facing patient complaints that you believe could lead to disciplinary charges, promptly retain the Lento Law Firm's premier Professional License Defense Team for your best possible disciplinary outcome. Call 888.535.3686 or complete this contact form now for our highly skilled, strategic, and effective representation. We have helped hundreds of physicians and other professionals successfully defend disciplinary charges.
