A Rare Reversal of a Licensing Sanctions by The Michigan Court Of Appeals Offers Hope to Disciplined Health Professionals
A recent Michigan Court of Appeals decision offers a glimmer of hope to health professionals who face the unenviable prospect of appealing adverse decisions made by licensing boards. Since 1994, the Public Health Code has required that appeals by licensed health professionals from adverse licensing decisions be filed in the Michigan Court of Appeals. Over the past two decades, there have been very few cases where the Court of Appeals held that a decision by a licensing board was legally incorrect or factually unsupported.
In Bureau of Health Professions v Serven (issued December 3, 2013), an insurance company retained a chiropractor to perform an independent examination of a patient who was receiving chiropractic treatment following an accident. The examining chiropractor reported that the patient’s injury was not causally related to the accident, leading the insurer to deny coverage for future claims. The patient’s treating chiropractor filed a complaint with the Bureau of Health Professions, claiming that the patient’s health might be harmed if he was not able to continue treatment. When interviewed by the bureau’s investigator, the examining chiropractor commented that the treating chiropractor “had a track record of performing unnecessary treatment.”
The bureau brought an administrative complaint, alleging that the examining chiropractor was negligent and lacked good moral character. The Board of Chiropractic’s disciplinary subcommittee imposed a one-year term of probation. (The Public Health Code authorizes health professional boards, acting through their disciplinary subcommittees, to impose disciplinary sanctions against licensed professionals.) The Court of Appeals reversed and remanded the case with instructions to expunge the chiropractor’s record.
First, the Court of Appeals looked at the Public Health Code’s definition of negligence, i.e., “a violation of general duty.” The court concluded that the examining chiropractor did not owe any duty to diagnose or treat the patient. Instead, his only duty was to perform the independent examination requested by the insurer in a manner that did not physically harm the patient. Because there was no evidence that the examining chiropractor violated this limited duty, the Court of Appeals held the finding of negligence was erroneous.
Second, the Court of Appeals discussed the definition of “good moral character,” i.e., the “propensity on the part of the person to serve the public... in a fair, honest, and open manner.” The court held that the examining chiropractor’s unfavorable comment to the investigator was not “unfair, dishonest, and secretive.” Rather, he was only offering a candid and honest opinion during the interview.
The licensing boards and Bureau of Health Professions act responsibly and fairly in most cases. However, as shown by Serven, that is not always the case. Given the fact that a licensing sanction can cause substantial and irreparable harm to a health professional’s career and reputation, the Court of Appeals’ willingness to carefully examine and enforce the statutory language and reverse the licensing sanction is welcome and much-needed.
Richard Kraus has 30 years of experience in the area of health care law, with special emphasis on licensing investigations and disciplinary actions. His representation of individual health care professionals as well as hospitals, health systems, long term care facilities and multi-practitioner clinics, provides an understanding of clinical and business realities in health care as well as legal and regulatory requirements.View All Posts by Author ›
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Best Lawyers® 2020
Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2020 edition. Firm-wide, 42 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:
- Gilbert M. Frimet, Southfield
- Richard C. Kraus, Lansing
- Gary J. McRay, Lansing
- Jack A. Siebers, Grand Rapids/Holland
- Jennifer B. Van Regenmorter, Holland
To see the full list of Foster Swift attorneys listed in Best Lawyers 2020, click here.