Recently our office defended a Registered Nurse who was facing a formal Accusation for Unprofessional Conduct, Gross Negligence, and Incompetence stemming from a death at a Skilled Nursing Facility. This RN was recently hired as the Director of Nursing for the facility, and was unjustly feeling the full weight of the employer, the licensing board, and the Department of Justice.
After our office filed the Notice of Defense and served letter of representation indicating that our office was retained, we immediately went to work. As a routine, but necessary matter, we made a demand for Discovery, which include the documents relied upon by the Attorney General’s Office to bring an Accusation and disciplinary action. We quickly learned that there was nothing routine about this case. After receipt of the Discovery, it became clear that key information was omitted, namely the Board’s Expert’s report – which is necessary to sustain a violation of Negligence or a deviation from the Standard of Care. After a thorough review of the Discovery including the investigative report, it also became apparent that such report existed; however, the Board and the AG’s office were objecting to its disclosure in the Discovery Process.
Understanding the legal violation of this omission and the repercussions to our RN, our office drafted a Specific demand letter to initiate a motion to compel the Discovery from the Board and Attorney General’s office.
The Board originally rejected our request and refused to produce the requested Expert report, alleging that the report was not used in the matter, and not relevant; and as such the report was protected from disclosure under the attorney-client work product doctrine. Our office knew the law was on the side of the RN, and fought back by arguing that the report was relevant and discoverable as (1) it was inferred to be the basis of the Accusation (as neither the DAG or investigator were medical professionals and therefore lacked the knowledge/ability to determine and/or allege deviations from the standard of care), (2) that work-product doctrine did not attached as the report was contracted for by the Board and not the attorney, and (3) that failure to produce the report unfairly prejudiced our Client. We argued that our Client was unfairly prejudiced, as they were required to defend against a report that their counsel did not have access to, that a professional license holder has heightened due process rights in their license, and that (as a licensee) RNs are required to reimburse the Board for the cost of this expert report (if discipline is imposed). Essentially, the RN would be required to pay for and be bound by a report that the RN had no access to review, vet, or contradict.
The Deputy Attorney General stated that the Board rejected our request, disagreed with our contentions, and had no obligation to produce the report by their expert. However, despite his objections regarding the discovery request, the Board was electing to withdraw the Accusation. Thus, our Client suffered no discipline, and the Accusation was removed from Breeze – so no public record of this matter.
Had our RN not had experienced legal representation, they may not have known that the Board was being disingenuous with their discovery obligations. The Board never cited to, or mentioned the Expert’s report specifically, in the provided discovery. With knowledge of how the Board conducts their investigations and the disciplinary process, our office forced the Board to acknowledge their Discovery requirements and ultimately our client’s name was cleared.
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