Defending Against Complaints Alleging Misconduct, Fraud, Misrepresentation, Dishonesty, Unethical Conduct, or Unprofessional Conduct
Physicians and other health care professionals often receive complaints alleging they committed misconduct, fraud, misrepresentation, dishonesty, unethical conduct, and/or unprofessional conduct. § 334.100.2(4) RSMo. Multiple allegations or incidents may be lumped together (even when they are unrelated), making it difficult to understand the nature, scope, and meaning of the allegations against a physician. And different legal standards apply to each of these terms (e.g., misconduct, fraud, etc.), further complicating a physician’s ability to respond to and defend against such accusations.
Representation by an attorney with experience in this area is thus important. Defending these complaints involves understanding and applying complex facts to nuanced legal principles. If you receive a complaint from the Board of Registration for the Healing Arts alleging you committed misconduct, fraud, misrepresentation, dishonesty, unethical conduct, and/or unprofessional conduct, contact the Law Offices of Kevin J. Dolley today.
What are misconduct, fraud, dishonesty, and misrepresentation?
Under Missouri law, misconduct is defined as the intentional commission of a wrongful act. Missouri State Bd. of Nursing v. Reynaud, No. 10-0696 BN, 2010 WL 8043996 at *2 (Mo. Admin. Hearing Comm’n, Dec. 29, 2010). Misconduct must be “willful in nature,” which is defined as “proceeding from a conscious motion of the will; ... deliberate. Intending the result which actually comes to pass; ... intentional, purposeful; ... done with evil intent, or with bad motive or purpose, or with indifference to the natural consequences, unlawful....” Grace v. Missouri Gaming Comm’n, 51 S.W.3d 891, 900 (Mo. Ct. App. 2001).
Separate and apart from misconduct, dishonesty has been defined by Missouri courts as “a lack of integrity or a disposition to defraud or deceive.” Id. at *2. Misrepresentation has been defined as a falsehood or untruth made with the intent and purpose of deceit. Reynaud, 2010 WL 8043996 at *3. Intent is an element of misrepresentation. Id. All of these terms—misconduct, dishonesty, fraud, and misrepresentation—require the showing of a specific intent to either deceive or commit a wrongful act.
What is “unethical" and "unprofessional conduct”?
“Unethical conduct” is not defined by statute. State Board of Nursing v. Heidi League, No. 16-2279, 2017 WL 2199057 at *5-6 (Mo. Admin. Hearing Comm’n, Apr. 13, 2017). The Administrative Hearing Commission has defined “ethical” as “being in accord with approved standards of behavior or a socially or professionally accepted code: MORAL ... conforming to professionally endorsed principles and practices[.]” Id.
“Unprofessional conduct” is also not specifically defined by statute. Id. However, the Missouri Supreme Court has held that a previous lower court definition of “unprofessional conduct” as “any conduct which by common opinion and fair judgment is determined to be unprofessional or dishonorable” is “circular and amounts to the statement that unprofessional conduct constitutes unprofessional conduct.” Albanna v. State Bd. of Registration for the Healing Arts, 293 S.W.3d 423, 430 (Mo. banc 2009) (citing Perez v. State Bd. Of Registration for the Healing Arts, 803 S.W.2d 160, 164 (Mo. Ct. App. 1991).
Instead, the Supreme Court interprets unprofessional conduct in light of the 17 grounds listed in § 334.100.2(4). See Albanna, 293 S.W.3d at 430. Grounds based in statutory language must be used to provide a basis for a finding of unprofessional conduct. Id. These statutory grounds may include conduct such as improperly delegating professional responsibilities, performing medical services of no value, not cooperating with a Board investigation, signing blank prescription forms, terminating patient care without notice, and other conduct.
Successfully defending against these complaints requires applying the unique facts of each case to the law as stated above and elsewhere within Missouri court decisions, statutes, and regulations. Physicians often face multiple legal claims based upon the same conduct, or an allegation that one incident resulted in multiple legal violations. Representation by an attorney who understands physician licensing law in light of the daily realities and challenges of medical practice is crucial to a successful defense. Our Firm has the resources, ability, and background to successfully handle these accusations.
If you are a physician or other health care professional who is accused of misconduct, fraud, misrepresentation, dishonesty, unethical conduct, and/or unprofessional conduct, contact the Law Offices of Kevin J. Dolley at (314) 645-4100 or email@example.com to schedule a consultation.