Professional engineers who affix their seal to plans for a structure must proceed with caution. The engineer may become liable for subordinates’ or other licensees’ mistakes. Therefore, professional engineers must take every precaution to make certain that subordinates’ plans as well as plans drafted by other licensees satisfy the standards in the profession. Failure to do so may have disastrous results, including revocation of license, suspension, probation, or censure. Missouri professional licensing attorney Danielle Sanger possesses vast experience in defending professional licensees whose ethical violations are based upon vicarious liability.

One of the greatest engineering tragedies occurred in Missouri. On July 17, 1981, the fourth and second floor walkways collapsed in the Hyatt Hotel. There were approximately 2000 people present. The collapse killed 114 and injured 186. At the time, this was the costliest structural collapse in United States’ history in terms of lives lost.  The Missouri Board of Architects, Professional Engineers, and Land Surveyors (“the Board”) instituted disciplinary action against the engineer in charge of the project. The engineer, Gillum, was found vicariously liable for the “acts and omissions” of another engineer when he affixed his seal to the plans, thus signifying his approval of the final construction plans.  Gillum was also found grossly negligent for not reviewing the subordinate engineer’s plans personally.

Gillum appealed the ruling. He argued that he cannot be found vicariously liable for another engineer’s actions. The appeals court disagreed. The court held that vicarious liability is based upon the relationship of the parties and, as a matter of public policy, one party is responsible for the “acts or omissions” of the other party. This holds true even if there is no wrongdoing on behalf of the party found to be vicariously liable. The court found that Gillum could not delegate his duty to ensure a structurally sound building once he affixed his seal to the plans. Thus, Gillum assumed responsibility of the entire project by signing off on the plans without a specific disclaimer.  The court stated that the thrust of disciplinary action is not necessarily punishment but rather protection of the public.  Accordingly, the disciplinary action levied against Gillum was appropriate for the subordinate engineer’s negligence.

Vicarious liability does not attach in every circumstance despite the engineer affixing his seal. The Missouri Supreme Court vacated the Board’s finding of suspension against an engineer, Bird, who approved final plans with his seal. The Missouri Supreme Court held that, upon review of the record, Bird discharged his duty as he was obligated to by statute. Bird was hired by a firm to complete a project and submit final plans after the firm had a financial dispute with the architect they initially hired for the project. The architect refused to place his seal on the plans. Bird reviewed all of the plans, performed the appropriate computations, and made the necessary changes to the plans. Bird affixed his seal approving the entire project.

The Board found that Bird failed to supervise the original architect and therefore was subject to discipline. The Missouri Supreme Court disagreed. The Court held that the statute merely delineated personal responsibility to Bird for the project and does not obligate one licensee to supervise another licensee. In reaching that conclusion, the Missouri Supreme Court stated that an engineer is only responsible for the work of an unlicensed person who is directly supervised by the engineer and not another licensee. Therefore, the Court found that Bird did not violate the licensing statute and was not subject to discipline.

Experience Generates Results

Kansas Professional licensing Attorney Danielle Sanger, with offices in Missouri and Kansas, understands the stress of facing a complaint levied by a licensing board. Attorney Sanger is a seasoned professional licensing attorney who will fight to protect your professional license that is the essence of your livelihood. Call Attorney Danielle Sanger today at 785-979-4353 to learn the difference experience will make for you.

Adverse action against a professional license can be appealed to a higher court for review. In Kansas, an administrative law judge makes findings and rulings at a hearing. The administrative law judge’s findings of fact and rulings of law must be based upon the evidence produced by the licensing authority at a hearing.  The licensee may accept the findings of the administrative law judge or appeal. The case is not heard all over again. Rather, the reviewing judge, usually a district court judge, will review the record generated by the investigation and hearing before the administrative law judge to ensure that the administrative law judge’s decision complied with Kansas law.  Kansas professional licensing attorney Danielle Sanger has vast experience in representing professional licensees in adversarial actions at the administrative level and on appeal.

In Kansas, the licensing authority has the burden of proving the allegations against the licensee. The administrative law judge must find the licensing authority has proved its case with substantial competent evidence to take adverse action against the licensee.  On appeal, the party with the burden of proof changes. The party asserting the error must prove that the ruling was wrong and its decision was “arbitrary and capricious.” The reviewing court will not hear new evidence. The reviewing court must accept the findings of fact found by the administrative law judge if the facts are “supported by substantial competent evidence.” “Substantial competent evidence” has been defined by Kansas courts as evidence that is relevant and provides a “substantial basis” to resolve the contested issues. The prevailing party is entitled to deference on the facts if the facts of the case are disputed on appeal to determine if the facts are supported by substantial competent evidence.” The court does not re-evaluate the evidence. However, the issues of law as decided by the administrative law judge are reviewed de novo by the appellate judge.

With those guidelines the reviewing court will only reverse the administrative law judge’s decision in very limited circumstances. One such circumstance is that the underlying statute, regulation, or by-law which formed the basis for punishment is unconstitutional and invalid, either “on its face” or “as applied.”  A reviewing court may overrule the findings if the agency investigating the allegations of wrongdoing had no jurisdiction to do so. The court may also overturn the decision if the administrative law judge failed to decide every issue required for resolution of the entire matter. If the investigating agency follows an illegal investigatory procedure or fails to follow proper procedure, then the decision may be overturned. Likewise, if the persons investigating the wrongdoing were not properly authorized to do so then the decision may be overturned. Furthermore, if the agency action is based upon a “determination of fact” of which there is no evidence and the fact is “substantial” to the determination of the issue. Lastly, the reviewing court may overturn the administrative law judge’s decision if the decision is arbitrary or capricious.

The district court’s decision may also be appealed. An appellate court will review a lower court’s decision to ensure that the district court limited its review strictly to the issues permitted. In that sense, an appellate court will undertake a similar review of the record as the district court. The appellate court is limited to the same areas of inquiry as the district court.

Do Not Try To Navigate These Choppy Waters Alone

Kansas Professional Licensing Attorney Danielle Sanger has vast experience in representing numerous professional licensees who face disciplinary action. Attorney Sanger is keenly aware of the sacrifice and determination required in obtaining a professional license. Adversary proceedings against a professional license are complicated and confusing. Contact Kansas professional licensing attorney Danielle Sanger today at 785-979-4353 to schedule your free consultation.

Nearly every ex parte conversation about a patient’s health is prohibited in Kansas and Missouri. Notwithstanding, physicians who practice medicine in both states are faced with conflicting rules relating to ex parte conversations in the context of litigation involving a patient. Physicians must do their level best to educate themselves on their ethical responsibilities owed to their patients despite conflicting rules to avoid a HIPAA violation, which is a federal crime. Furthermore, a HIPAA violation can lead to sanctions on the physician’s license. Consequently, the careful physician must consult a professional licensing attorney to avoid HIPAA violations. Professional licensing attorney Danielle Sanger who is admitted to practice in Missouri and Kansas, possesses the knowledge and experience to advise you how to ethically resolve the issue.

The ethical conundrum for physicians licensed in both states is caused by conflicting treatment of HIPAA’s privacy rules in the context of third-party contact with physicians regarding a patient’s claims. In a recent decision from the United States District Court for the District of Kansas, a magistrate judge ordered a plaintiff to execute a HIPAA-compliant medical authorization granting permission to the defendant’s attorneys to conduct third-party conversations with the plaintiff’s treating physicians. The plaintiff objected to the defendant’s motion to endorse an authorization allowing the defendant’s attorneys to interview her treating physicians.  The plaintiff sought to quash the defendant’s motion by arguing that Missouri law, rather than Kansas law, must apply, and therefore under Missouri law, such a practice would be prohibited.

The magistrate judge disagreed with the plaintiff. The judge ruled that Kansas law applied rather than Missouri law. The judge further ruled that Kansas law, although recognizing a patient–physician privilege, specifically excluded patient–physician communications where the patient placed her condition in issue in litigation. This guided the court in ruling that HIPAA specifically allowed third-party conversations if the request otherwise complied with state requirements to obtain medical information from healthcare providers and the healthcare providers are given notice that they may decline to be interviewed. The magistrate judge, further construing Kansas law, noted that ex parte conversations with a physician are permitted by Kansas law and “may be regarded as ‘in the course of’ a judicial proceeding.”

The Supreme Court of Missouri, on the other hand, construes HIPAA, and therefore Missouri law, to prohibit ex parte contact. The Missouri Supreme Court, in an analogous situation to the case referenced above, analyzed whether HIPAA, a federal law, pre-empted state discovery rules in litigation.  The court held that HIPAA did pre-empt state law. Specifically, the Court found that HIPAA allowed disclosures of protected information through discovery or other “formal court procedures.”  In the context of discovery of protected medical information, a Missouri court has “authority and oversight” over proceedings in court and proceedings conducted under formal discovery rules. An ex parte conversation with a physician is not a formal discovery tool authorized by the Missouri Rules of Civil Procedure. Additionally, Missouri courts have no authority to compel a physician to engage in ex parte communications or to compel a plaintiff to specifically authorize such communication.

The Missouri Supreme Court ultimately decided that ex parte communications are specifically prohibited by HIPAA. The Court reasoned that ex parte communications are beyond judicial supervision and therefore, a trial court had no jurisdiction to rule on “informal ex parte communications” with the plaintiff’s physicians who are not parties to the litigation. The Court offered some guidance to Missouri physicians. The Court opined that physicians can comply with HIPAA by declining to an ex parte interview unless their patient gives appropriate authorization. Of course, the physician is free under Missouri common law to decline to be interviewed.

Consult With A Knowledgeable and Experienced Professional Licensing Attorney

Kansas Professional Licensing Attorney Danielle Sanger has the best interests of professional licensees in mind. Consult attorney Sanger if you or your staff has any questions or concerns regarding the scope of disclosures that you may lawfully make. Call professional licensing attorney Danielle Sanger at 785-979-4353 immediately to schedule your free consultation.

As recently as 2013, the United States Department of Justice calculated the prison population of the country at over 1.5 million people. Over 31,000 people are in the custody of the Missouri Department of Correction. Meanwhile, over 10,000 are incarcerated in the Kansas Department of Correction. Nurses working in a correctional institution must set aside their personal beliefs about the prisoners, some of whom are serving sentences for ghastly crimes of a violent or sexual nature. In prison, despite controlled environments, a nurse’s own safety is at risk. Nonetheless, nurses must conduct themselves with the highest degree of ethical behavior to provide the requisite level of health care to the incarcerated. Professional licensing attorney Danielle Sanger understands the strain under which correctional nurses toil and will provide zealous legal defense for any nurse whose ethics are questioned.

Nurses are a critical component of our health care system. Adherence to the principles of justice, fidelity, veracity, autonomy, beneficence, and nonmaleficence guide the nurse’s actions in providing health care to the sick or injured. A correctional setting can challenge those ideals. While nurses are “bound” by the “Code of Ethics and Interpretative Statements,” they must also balance “the goals of corrections and the incarcerated person’s rights to appropriate health care.” Thus, the nurse must perform a nurse’s duties without regard for who the person is and what the person did. Said another way, the nurse must view and treat the prisoner as a person.  Notwithstanding the adherence to this lofty standard, the correctional nurse is encouraged to maintain “safe boundaries” in the institution for their own protection and well-being.

The corrections environment completely distinguishes correctional nursing from nursing care in a strictly medical environment. In fact, correctional nurses are prohibited from engaging in behavior that is related to a corrections function; their mandate is to treat the inmates’ health concerns and those alone. Consequently, the nurses are prohibited from participating in any function of capital punishment because capital punishment destroys life and the nurses’ goal is to preserve life. Furthermore, the American Nurses Association (ANA) prohibits nurses from assisting in investigations such as body cavity searches and other court-ordered procedures, like lethal injection, which lack any health care benefit and are performed without regard to the patient’s “informed consent.”  Correctional nurses are further prohibited from performing any function relating to discipline of inmates or serving on any penal committees. Although from a corrections and rehabilitation standpoint having a nurse serving on such boards may provide the board valuable insight into the inmate’s health concerns upon re-entry into society, such advisory roles are not permitted according to ANA standards.

The correctional nurse will confront diverse medical issues when treating inmates. Health issues relating to juvenile care; health issues specific to females, including treating pregnant incarcerated females and their children; geriatric and end-of-life care are also some of challenges a corrections nurse may face. Additionally, the corrections nurse will face public health issues, such as communicative diseases, as well as issues related to substance abuse and withdrawal all while endeavoring to follow the ANA Correctional Nurses Standards by incorporating the patient’s cultural preferences in the health care equation. The corrections nurse is also burdened with the ethical obligation of ensuring inmates’ access to health care in the facility. The nurse, when informed of a medical issue, must promptly and properly evaluate the inmate’s health care needs and take the proper course of action. The nurse must engage the inmate, bearing in mind safety concerns, personally to properly assess the level of health care required.  Failing to do so may cause the inmate to file a malpractice lawsuit or file a complaint against the nurse’s license to practice.

Professional Licensing Attorney Assisting Those Who Assist Others

Kansas Professional Licensing Attorney Danielle Sanger is dedicated to fighting for professional licensees who are facing an ethical complaint in Kansas or Missouri. Attorney Sanger understands the level of dedication and sacrifice nurses make every moment of their careers. That is why Attorney Sanger will vigorously fight for you to defeat ethical complaints.  Call professional licensing attorney Danielle Sanger at 785-979-4353 today for your free consultation.