Nurses often come to my office for a consultation, and one of the first questions they ask is “is this a criminal or civil?” Sometimes they have documents with them including a criminal complaint, a notice of a claim from a nursing board, and investigation documents from their employer.  None of the papers makes it clear whether the conduct in question will result in the loss of a job, jail time, loss of a nursing license, or all of the above. I don’t blame those nurses for being confused, as depending on the conduct in question, the conduct alleged could result in civil, criminal, or employer-based hearings. I wrote 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 Nurses’ Civil and Criminal Matters

Criminal and civil matters may seem similar—they’re both complex legal processes—but they have several significant differences, including the burden of proof involved, the possible penalties, and the type of hearing involved.

Criminal matters involve having your liberty taken by the state—they result in the accused nurse going to jail if he or she is convicted.  A district attorney files a criminal allegation in court using a “complaint,” and a nurse usually learns of the charges by being handed the complaint by a police officer or by being arrested. Because a loss of liberty, incarceration, is a severe deprivation, substantial “due process”—a trial by jury—is required before you can be convicted and put in jail.  Due process means an opportunity to know what the accusations are against you, a chance 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. 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. For nurses, these claims typically involve an assault on a patient, illegal use or possession of narcotics, and sexual misconduct involving a patient.

If you are served a complaint against you by police or are arrested, you are involved in a criminal matter.

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 for state governments.  As a result, the state cannot take your professional license or your interest in your reputation without “due process.” Due process in a civil matter may involve a trial, but not necessarily with a jury. A civil matter may result in having some property—like your license—taken or suspended or having a fine imposed.

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 Nurses’ 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 nurse who is giving his relatives opioids for their pain without a prescription. If the state nursing board is alerted to this practice, the nurse 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 nursing 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 license and prescription is also a crime.

If the nurse in the above example admits in his civil hearing before the nursing 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 nurse’s licensing issue can merely hand the transcript of his admission to an Assistant District Attorney who can then charge the nurse 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 and is often thought of as 99%. But if the nurse admitted to distributing the opioids, that admission often meets either standard. The same is true if the nurse makes admissions to his or her employer—those statements can be used again or “recycled” by the state’s nursing board or the prosecutor in a criminal case. Simply put, do not make any statement to anyone without an attorney by your side. 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 nursing 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.