I recently wrote a blog about the enforcement environment for Pennsylvania medical professionals. Pennsylvania’s Disciplinary Environment  —  PNAP Investigations   Pennsylvania’s medical related licensing boards are receiving a record number of reports accusing licensees of drug related diversion, DUI arrests for alcohol or drug intoxications (medical marijuanna), and other impairments that affect professionals’ ability to practice safely.  In almost every circumstance, licensees’ alcohol and drug related conduct now generates Petitions for Mental and Physical Evaluations.  I have written numerous blogs about the importance of preparing for these evaluations and promptly attending.

On October 2, 2018 the Commonwealth Court issued a decision in the matter of Dearmitt v. BPOA. Factually, the case originates in July 2008 when Dearmitt, a registered nurse, was charged with a highest rate (above a .16 BAC) DUI. After enrolling in her county ARD, Dearmitt completed ARD diversion in July 2010. Pending the DUI, Dearmitt self reported the DUI, ARD, and the expungment to the Board. VRP contacted her via a Letter of Concern.

Thereafter, consistent with the process of which I have blogged many times, Dearmitt rejected the VRP.  The Board filed a Petition for a Mental and Physical evaluation. Dearmitt attended the evaluation in July 2011. Dearmitt did not have counsel.  It seems she did not prepare for the Evaluation. The Board’s PHMP expert determined that in 2011 Dearmitt suffered an drug or alcohol impairment from the 2008 DUI, which was continuing, and affected her ability to practice her profession safely.  Dearmitt rejected this conclusion and went to a hearing.

The hearing officer determined, after listening to the board’s expert testify about Dearmitt’s medical history and explanation of her drinking history, that she should be compelled to enter the disciplinary monitoring unit and participate in the PHMP program for five years. Dearmitt appealed, arguing the Board’s legal conclusions  were not supported by recent substantial factual evidence, but rather ancient medical history, drug use history; The Board’s decision and expert opinions were stale.

Unfortunately, Dearmitt’s attorney did not prepare her for the evaluation, the hearing, or knew the issues on appeal.  It seems that the attorney did not raise this issue in a proper, congnizable legal claim at the time of the hearing, in post hearing briefs, in a brief on exceptions with the final nursing board order, or in her appeal issues before the Commonwealth Court was taken.  In its final decision, the Commonwealth Court determined that Dearmitt waived the issue of a stale medical basis to conclude an ongoing impairment in 2018 from a 2008 DUI. 

After reviewing the Dearmitt’s medical history, the court said the Nursing Board has a basis to render its decision.  However, Dearmitt did not properly preserve the main issue in this impairment appeal:  Did she suffer from a continuing impairment that affected her ability to practice?  The court did not address this issue.   This is the exact blog I just wrote about…click the link.

The delay in these proceedings, a 2018 Appellate Court decision regarding an impairment linked to a 2008 DUI is absurd. Dearmitt’s attonrey should have raised these issues when the petition for the Mental and Physical was filed, at the hearing, after the hearing, so she could raise it on appeal.  None of this was done.  He should have properly phrased the legal issue as the Commonwealth expert and Board meeting its burden of proof.  

Call me to discuss your VRP letter of concern, the Mental and Physical Evaluation Petition, the Order to Show Cause and your upcoming hearing.  Does your attorney or you know the issues and how to protect your license.