A Petition for an Immediate Temporary Suspension is a unique tool in licensing boards’ arsenal of prosecutorial petitions. The prosecutor alleges facts, which if taken as true, establish the licensee’s continue practice of their profession presents a immediate and clear danger to public safety. For physicians, the law is found at 63 P.S. §422.40(a).
Procedurally, the probable cause screening committee of that licensing board reviews the emergent petition. An Order of Temporary Suspension and Notice of Hearing accompany the filing. Upon filing the petition, a licensee’s license is emergently and automatically suspended pending a hearing. A hearing is to be convened within 30 days for the date of the order.
The burden of proof is merely a prima facie case. This standard is, not considering witness’ credibility, “Is it more likely than not (do I think the facts actually occurred), the events as alleged transpired?” If so, the hearing officer can only continue the suspension.
This suspension only lasts 180 days. Within that 6 months, the prosecutor must file a separate formal disciplinary action. That action will not stop an automatic suspension from expiring. Rather, disciplinary action — the prosecutors hope – will be completed and a final order of discipline entered before 180 days.
What disciplinary matters resolve in 6 months? Criminal charges related to sexual misconduct, prescription fraud, drug or opiate abuse, or incompetence typically form the factual basis for emergency automatic temporary suspension petitions. These disciplinary cases can resolve in 180. They are based upon criminal charges, which typically resolve in 180 days. The formal disciplinary action is based upon a criminal conviction and a provision in the licensing scheme that carries an automatic suspension for a specified time based upon a formal conviction.
I have handled these suspension cases under numerous fact patterns. Unique case facts include patient safety issues in a dental practice involving sterilization and hygiene procedures. Many cases allege drug and sexual contact facts. I am currently handling several cases involving catastrophic medical events precipitating emergent declines in mental and physical capacity to practice medicine. This is a medical and mental impairment case.
Unfortunately, medical impairment cases, precipitated by a significant medical condition, include mental health concerns reflected in suicide attempts. Prosecutors allege self-induced drug overdoses constitute a drug or alcohol addiction in addition to a medical condition that warrants PHMP enrollment or license suspension. Prosecutors argue physical and mental recovery must occur before the automatic suspension can be lifted.
Importantly, these cases do not generate an independent basis for disciplinary action. Prosecutors typically file a petition for a Mental and Physical Evaluation soon after the emergent suspension order is signed. This allows for a period of suspension pending the board’s expert evaluation and clearance. Preparation for and attendance with counsel at the evaluation is paramount to lifting the suspension without being placed in the PHMP.
It is at this type of PHMP expert evaluation that the Board expert carries great weight. However, Commonwealth Court rejects Board experts that summarily opinion impairments when none exists. I have recently written about this in my Blog, https://www.phila-criminal-lawyer.com/blog/2018/12/mental-health-impairments-duis-ard-and-the-phmp—-voskanian-reports.shtml.
Call me to talk about an emergent Immediate Temporary Suspension Order.