The first reaction of a health care professional who has received a notice of summary suspension is usually: “How did this happen? How can they take my license without notice or a hearing?”
The answer lies in Virginia Code § 54.1-2408.1.A. This statute authorizes a health regulatory board to suspend a license “without a hearing . . . if [it] finds that there is a substantial danger to the public health or safety which warrants this action.”
Unfortunately, “substantial danger” is not defined in law, regulation, or guidance document. This lack of definition gives a regulatory board a great deal of discretion – some would say too much discretion -- to suspend a license without notice or a hearing.
The intent of the law is to allow a board to yank a license if it believes that patient harm is ongoing or imminent. The classic example is a surgeon who has lost her skills due to a neurological impairment, such as Parkinson’s, yet continues to perform surgery. In this example, patients might suffer at the hands of this surgeon if she is allowed to continue operating while her case winds its way through the “normal” disciplinary process.
Summary suspension is a shock, to say the least. This is because, in most cases, the practitioner – months before receiving the suspension -- has received a complaint, met with the investigator, and assumed that the next step is a formal or informal hearing where she can defend herself. Now, suddenly, her license is revoked. And she never got to meet with the board.
As a practical matter, what does the summary suspension require the practitioner to do?
First, the practitioner must stop practicing immediately. In the case of a summary suspension of a facility license such as a pharmacy, the suspension order requires closure of the facility. In many cases it may be necessary to notify employers, colleagues, patients, and certification boards. Your attorney can advise you on your disclosure obligations.
Second, the practitioner must decide whether to fight the suspension or seek a consent order. The decision to fight the suspension may make sense if there are key facts that the board misunderstood or simply missed. There have been a few instances where a board has withdrawn or dramatically modified a suspension after learning what really happened.
The decision to seek a consent order depends on whether it’s possible for the practitioner to practice in a more limited way without endangering the public. A physician with severe dementia is obviously not a candidate for a restricted practice. But a physician with Parkinson’s, for example, can practice in a broad variety of settings, with the exception of the operating room, without endangering the public.
Your attorney can advise you on what is achievable in your case.