Series: Nurse on Trial, Part 3
"If the Board takes this to trial," I told Mark Neely, "and they win, they are not limited to a public reprimand. They could take your license. But, if you agree to this deal, we get the right to have the Administrative Hearing Commission review the documents and determine if discipline is proper. That's your best chance to beat this thing."
Section 621.045(3) of the Missouri Statutes provides in relevant part:
(3) If no contested case has been filed against the licensee... the licensee may, either at the time the settlement agreement is signed by all parties, or within fifteen days thereafter, submit the agreement to the administrative hearing commission for determination that the facts agreed to by the parties to the settlement constitute grounds for denying or disciplining the license of the licensee;
Reluctantly, and after several difficult months of thinking about it, Mark Neely agreed to accept discipline of a reprimand, but only if he could have his case reviewed by the Administrative Hearing Commission. The Board of Nursing claimed that Neely's failure to account for two vials of Diprivan, without more, was sufficient grounds to discipline Neely's license for gross negligence or incompetence. I did not believe that the events at issue fit either definition, and so I urged Neely to petition for review.
When Neely advised the Attorney General in March, 2007, that he would accept discipline but would exercise his rights under § 621.045, the Attorney General did something brazenly improper. It filed a complaint or a "contested case" against Neely. No case had been on file before that time, and none was needed as a specific statute prevented the statute of limitations from running while the parties were negotiating. But the Attorney General wanted to have a back up plan. In the event that the AHC found that the agreement did not state a cause of action for discipline, it wanted to have a second chance to prosecute Neely's license. In essence, it wanted to avoid guessing wrong about what constituted a cause for discipline.
Unfortunately for both Neely and the Board, the Administrative Hearing Commission heard argument and decided in September, 2007, that the filing of the case by the Board prevented the Commission from hearing the petition for review. The Commission set a new trial date in January of 2008.
When it looked like the case was going to go to trial, as Neely's counsel I asked for all the discovery materials I had requested in March when the Attorney General filed the case. The Attorney General - oddly enough - told me I couldn't have them. I filed a motion to compel, and again, the Attorney General sought to prevent me and Mr. Neely from seeing the medical records in the case. Only when it recognized it would need to produce the records at trial did it actually request that the hospital produce the medical records.
Trial was set for January 22, 2008, and on January 9, 2008, at Mr. Neely's deposition, the State finally produced a complete copy of the medical records in the case. Mr. Neely took a set home with him to review. I kept a set to review. Almost immediately we were on the phone to one another telling each other what we believed the records showed.
"How can they expect to win with this in the records," Neely asked.
"I don't know," I told him.
In my next blog post we'll see what happens when the Attorney General is made aware that the records don't support the case.