nurses please talk to an attorney before you talk to an investigator

7/31/2019 Nurses Please Talk to an Attorney Before You Talk to an Investigator

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Nurse: Please, Please, Please Talk to an Attorney BeforeYou Talk to an Investigator

By Lance Leider, J.D.

In Florida, You DO NOT Have to Speak to an Investigator!

Despite mailing out hundreds of thousands of postcards and

letters to nurses throughout Florida, we continue to receive callsfrom new clients and from potential clients, after they have

already spoken to and made critical harmful admissions againsttheir own interests to investigators. In Florida, you do not have

any duty to cooperate with any investigator who is investigating

you. This extends to Department of Health (DOH) investigators(who are sometimes titled "Medical Quality Assurance

Investigators" or "Medical Malpractice Investigators"), Drug

Enforcement Administration (DEA) special agents, police officers, sheriff's deputies,or criminal investigators of any type.

Investigators are NOT on Your Side.

Let me state this as succinctly and clearly as possible. If you are being investigated,you will not be better off making a statement. You will not be better off explaining

your side of the story. The investigator is not your friend. The investigator is not onyour side. All you are doing is falling for a trick and helping the government to make

a case against you.

Protect Yourself and Your License.

You have a right under the U.S. Constitution to not make any statement that may be

used against you. This is so important that in criminal cases government

investigators are required to advise you of this by reciting to you your Mirandarights.

However, in cases where you might have your nursing license revoked theinvestigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However,in a professional licensing case or other administrative case, it may be too late to

avoid the damage. You may be the best witness the government has and you maybe the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators arerequired to read you your constitutional Miranda rights and to be sure that you

understand them before you make a statement. However, in a case where you canlose your professional license, where you could lose your livelihood and ability to

make a living, where you could lose everything you have worked so hard to obtain,

they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually callat a very inconvenient time (to catch you by surprise) and will usually flash a badge

(to intimidate you), will refuse to acknowledge the seriousness of the matter and willfall for the bait to "tell their side of the story." This can be fatal to your defense and
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fatal to your license.

Do NOT Admit to Anything; Anything You Say May Ruin Your Defense.

In the absence of a statement by the suspect (in this case, let's assume this is YOU),

the government may have a very difficult time of proving that you have committed

any offense. It may have other witnesses (who may not be around at the time of anyhearing or trial). It may have a lot of physical evidence or documents. But it may beimpossible for the government investigators to make any link between you and the

evidence, unless you help the investigators do this. You would be surprised at howmany nurses believe that they can just talk their way out of the situation; in reality,

they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the

documents are yours, admitting that the patient was yours, admitting that youworked at the clinic, admitting that you wrote the prescription, admitting that the

property is yours, admitting that you were on duty at the time, admitting that youhave taken a drug, admitting that you signed the form, can be a crucial piece of

evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators' job and profession. This is what they do full

time, every day. And they are very good at it. They are 1,000 times better at gettingyou to admit the crucial elements of a disciplinary infraction than you are in "talking

your way out of it." They will not be convinced by any excuses you make. They donot have to be. They will not be the ones making the final decision against you.

Theirs is the job of putting together the case against you. You will help them bytalking to them, explaining why your decisions are correct, explaining why what you

did is excusable, etc. It will not work. You will merely be giving them enough rope tohang you with.

Determining the Purpose of the Investigation.

Hint: If it is an "auditor," "surveyor" or "investigator" from an agency or companywith "integrity" or "program integrity" in its name, they are probably investigating

you for "lack of integrity," i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator)they are probably investigating you to prosecute you or to revoke your DEA

registration for drug or prescribing violations.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical

Malpractice Investigator, they are probably only investigating possible disciplinaryaction against your license that could result in large administrative fines or

revocation of your license.

You Cannot Outsmart the Investigator; Do Not Try to Talk Your Way Out.

Do not believe for a second that you are smarter than the investigator. Do not

believe for a second that you will convince the investigator (or anyone else) that

there is a legal or medical justification for what you did or what they allege. If it wereas simple as that, then why would there be an investigation and why would you be

the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either.
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Remember, if the government cannot prove the basic offense that it is investigatingagainst you, it may be able to prove that you have committed perjury or lied to an

investigator. In the case of a federal official or a federal investigation, merely makinga false statement (oral or written) to an investigator is a criminal act. This is what

Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting liesthan a polygraph expert is. Furthermore, in most cases, you will be the very lastperson to be interviewed. Therefore, they will already know just about everything

that can be used against you. If your statement contradicts in any way what othershave told them, they will know you are the one who is lying. However, knowing

something or suspecting something does not mean it will be something that can be

proven in court or in an administrative hearing.

Consult an Attorney Before You Do or Say ANYTHING.

It is much better to make no statement at all. Blame it on your attorney. Tell theinvestigator that your attorney will kill you if you were to talk to the investigator

without your attorney being there ahead of time. "Speak to my attorney." "My

attorney can help you, I can't."

All you have to do is state "I must talk to my lawyer before I say anything." "I will

have my lawyer contact you." "I cannot say anything until I talk to my lawyer." "Iwant a lawyer."

If you are not the one being investigated, then there is no good reason why

the investigator would want you to make a statement before you consulted

with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you "If you don'thave anything to hide, why would you need a lawyer?" Please don't fall for this trick,

either. This is America. Smart people and rich people spend a lot of money on

attorneys and other professionals to represent them and advise them. There is agood reason why they do this.

Far too often the nurse only calls us after he has given a statement. This is usually

too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not makeeither. Contact a lawyer as soon as possible, preferably before making any

statement, no matter how simple, defensive, self-serving or innocuous you maythink it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidanceand avoid this type of mistake?

Contact Health Law Attorneys Experienced with Investigations of Nurses.

The attorneys of The Health Law Firm provide legal representation to nurses and

nurse practitioners in Department of Health (DOH) investigations, Drug EnforcementAdministration (DEA) investigations, FBI investigations and other types of

investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and
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visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider, J.D. is an attorney with The Health Law Firm,

which has a national practice. Its main office is in the Orlando, Florida, area.www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte

Springs, FL 32714, Phone: (407) 331-6620.

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