Kansas and Missouri Professional Licensing Attorney Danielle Sanger Explains: Is My Licensure Case Criminal or Civil?

Medical professionals often come to my office for a consultation and one of the first questions they ask is “is this a criminal or civil?” I don’t blame them for being confused, as depending on the conduct in question, it could end up being civil, criminal, or both. Because I so often get questions about the intricacies of these matters, I have written the following blog post to explain the difference between civil and criminal matters and the legal implications of your disciplinary board matter.

If you are a professional in Kansas or Missouri facing an allegation of misconduct or an investigation, call attorney Sanger today at 785-979-4353 to schedule a free consultation. Your career, reputation, and livelihood are at risk, and the challenge facing you is one you cannot work your way through alone.

The Difference Between Civil and Criminal Matters

To start the basics, a civil matter is one where the state seeks to take some “property” from you.  Now, you may think of property like physical property such as a car or land, but you also have a property interest in your license as a medical professional. You also have a property interest in your good name and reputation. You’ll remember from the U.S. Constitution’s 5th Amendment that the federal government cannot take your life, liberty, or property without due process of law.  The same holds true for state governments.  As a result, the state cannot take your professional license or your interest in your reputation without “due process.” Due process means an opportunity to know what the accusations are against you, an opportunity to review the evidence against you, and a hearing where you and your attorney can confront or attack those accusations and evidence with your own evidence. A civil matter may result in having some property—like your license—taken or suspended or having a fine imposed.

Criminal matters involve having your liberty taken by the state—they result in the accused going to jail if he or she is convicted.  A district attorney files a criminal matter in court, and you would usually learn of the charges by being served by a police officer or by being arrested. Because a loss of liberty, incarceration, is viewed as a more severe deprivation, more due process is required.  The standard of proof—beyond a reasonable doubt—is higher in a criminal case, a jury usually judges guilt or innocence, and the hearing or trial is much more formal.

If you receive a letter in the mail from a state administrative agency indicating that a licensure action or investigation has initiated against you, that administrative matter is civil in nature and not criminal. The letter signals that the state is starting your due process rights and alerting you to your opportunity to engage in that due process.

When Criminal and Civil Matters Overlap

If you have watched any amount of television, you have probably seen a crime drama where the criminal being arrested is given his Miranda warning of, “you have the right to remain silent, everything you say can and will be used against you in a court of law.”  While the crime drama may be just television, those rights are real.  That warning is relevant to you as well.

Take as an example, a pharmacist who is giving his relatives opioids for their pain without a prescription. If the state pharmacy board is alerted to this practice, the pharmacist will likely receive a notice of accusations in the mail, initiating his due process rights. That letter is a civil matter. If he is found to have violated the pharmacy regulations by a preponderance of the evidence—by a likelihood of at least 51%—he will have a civil penalty such as a fine, suspension, or license revocation. However, distributing opioids without a prescription is also a crime.

If the pharmacist in the above example admits in his civil hearing before the pharmacy board that he has been distributing opioids, that information can be used against him criminally. A statement made in a civil hearing, like any statement, can be used against you. The Assistant Attorney General who prosecuted the pharmacist’s licensing issue can simply hand the transcript of his admission to an Assistant District Attorney who can then charge the pharmacist with drug distribution.

As I stated above, the burden of proof in a criminal case is “beyond a reasonable doubt,” which is much higher than the civil hearing’s “preponderance of the evidence” standard. But if the pharmacist has admitted to distributing the opioids, that unequivocal admission will likely meet either standard.

As a result, a civil matter can easily turn into a criminal one if the conduct alleged violates both the state regulations that govern your medical field as well as the criminal statutes. While the example above dealt with opioid distribution, I have also seen civil cases transform into criminal ones in cases alleging sex with a patient, boundary violations, and financial transgressions.  Accordingly, it is a massive mistake to think you can handle your civil hearing alone or that you can play along with the investigation to make things go away. You are just digging yourself into a deeper hole and playing into the state’s hands when you attempt that sort of foolish strategy.

Contact an Experienced Kansas and Missouri Licensing Attorney Now

You have worked too hard to attain your professional license.  Contacting an experienced licensing attorney to help you through the misconduct hearing process, explain the criminal implications of any allegations against you, and can mean the difference between getting back to helping your patients and losing your career forever.

Kansas and Missouri professional licensing attorney Danielle Sanger is prepared to advocate for your best interests and defend you. Call Attorney Sanger at 785-979-4353 to schedule a free consultation with an attorney experienced dealing with nursing licensing issues.