Pennsylvania physicians, pharmacists and nurses currently practice in an extreme enforcement environment.  Every medical professional charged with a criminal offense could face severe license discipline.  One out of four (25%) of Pennsylvania’s health care related disciplinary cases start with Board prosecutors filing Immediate Temporary Suspension (“ITS”) petitions to emergently suspend the professional’s license.

If you receive this type of petition, hire the right attorney.  Board prosecutors file these petitions, falsely claiming the licensee is an immediate danger to public health.  The Board then suspends, pre-hearing, the license for 6 months pending formal disciplinary action.

However, prosecutors typically, and merely, attach the criminal complaint to the petition.   It does not matter when crime happened.  It could be months ago! Experienced counsel should answer the petition and object to the evidence used to destroy the healthcare professional’s license and future.  Do not agree to any suspension! Ask for a hearing within 30 days and force the Board prosecutor to prove his/her case.

Every licensee should vigorously fight these emergent license suspension petitions.  Once the petition is answered, a hearing is scheduled in 30 days. At the hearing it is imperative to object to any suspension petition based on the police complaint hearsay evidence.

In my recent case, Yuan v. BPOA, we raised this issue.  Yuan’s criminal charges were based upon facts 10 months old, for which there was no medical malpractice or other civil cases pending.  The Board ITS petition only attached the criminal complaint. The Board read the criminal complaint and suspended my client’s medical license.  We objected, answering the petition and being ready for the ITS hearing in 30 days.

Importantly, with covid-19 related criminal court delays, Dr. Yuan’s criminal case will not be heard for at least 18 months. No criminal preliminary hearing has taken place yet.  At the medical license suspension hearing the prosecutor only introduced the criminal complaint and the detective’s testimony – which was all hearsay evidence.  The medical board prosecutor did not call any patient witnesses.   The hearing continued the suspension.

We filed an appeal to Commonwealth Court.  We also filed a Petition to Stay the improper license suspension.  Commonwealth Court agreed, ruling health care related boards cannot rely on hearsay and inadmissible evidence to emergently suspend a professional’s license.  The appellate court reinstated Dr. Yuan’s medical license.

This argument has been raised in prior Commonwealth court cases.  However, the Board prosecutors keep filing ITS petitions and only attach the criminal complaint. May attorneys and their clients do not fight these petitions.  Every case must be fought.  Board prosecutors must be forced to introduce competent admissible evidence at these hearings.

In Yuan’s case, Commonwealth court admonished the hearing examiners and licensing board prosecutors that the mere filing of criminal charges against licensees is insufficient evidence upon which an Immediate Temporary Suspension order may lay. The court reviewed a recent Pennsylvania Supreme Court criminal case decision discussing hearsay evidence and preliminary hearing.  Commonwealth v. McClelland holds that hearsay evidence alone does not establish a prima facie case in a preliminary hearing on a criminal complaint. Commonwealth court emphasized economic liberty interests in Article 1,  Section 1 of the Pennsylvania Constitution apply to McClelland to licensees’ right to earn a living.

Yuan v. BPOA- Medical Board, is momentous decision in license prosecutions and ITS petitions.  The board prosecutors must now offer into evidence more than just the criminal complaint to carry their burden of proof at these hearings.  Licensees without proper representation will not be aware of this rule.

For every health care professional, continuing to work and maintain a professional license during the pendency of any criminal or disciplinary charges is imperative. Everybody needs to work to make money to pay the bills and to afford a criminal or licensing attorney. Board prosecutors’ goal of financially strangling licensee’s income or revenue so they cannot afford competent counsel is now repudiated as a means of prosecutorial oppression. Call me to discuss your case.