Our Florida Healthcare Attorneys Take Two-Handed Approach for Nurse Accused of Drug Diversion

Nurse and Patient at a Hospital

For Florida healthcare providers, being accused of drug diversion can be just about the worst thing to happen. Not only is drug diversion a criminal offense — punishable by hefty fines, jail time, and the loss of basic civil rights such as voting — it also means being stripped of a professional medical license, a credential that’s required to practice in the healthcare field.

Drug diversion is defined as the misappropriation of prescription medication without legal authorization. It also is referred to as medication/prescription diversion and opioid diversion.

Yet for Florida physicians, nurses and nurse practitioners, pain management specialists, chiropractors, and other licensed medical professionals who find themselves facing charges of drug diversion, there have been limited options in fighting those accusations. The most common one is to hire a general criminal defense lawyer, many of whom don’t understand the complexities of criminal law for medical providers, particularly the professional licensing ramifications. As a result, nurses, doctors, and other providers have lost their licenses because they opted to plead guilty to charges for which they might not have been fully guilty — if at all — in the first place.

As Florida healthcare attorneys, we at Chapman Law Group have taken over cases countless cases for healthcare providers who, believing they could only plead, wanted a second opinion. And these providers are glad they did: we’ve beaten the charges, gotten licenses restored, and had accusations stricken from records.

How do we do this? It’s simple. Unlike other Florida healthcare lawyers, our team of attorneys specialize in, and work together on, both the criminal defense and professional licensing aspects for the healthcare field. This is an advantage that few, if any, healthcare law firms can provide.

For example, if a Florida nurse practitioner comes to us saying she’s accused of overprescribing, our team of regulatory and licensing lawyers will work with her on matters she faces from Florida Department of Health (DOH). Meanwhile, our criminal defense attorneys — who possess an intricate knowledge of how federal agencies like the FBI, DEA, Department of Health and Human Services Office of Inspector General (HHS-OIG), DOJ, Medicare Fraud Strike Force, and the U.S. Attorney’s Office work — will look into developing a strategy for fighting drug trafficking charges.

Recently, our Florida health care attorneys took on a nurse’s drug diversion case, and it’s a perfect example of how, when combining specialty healthcare law expertise, we at Chapman Law Group are the leaders in protecting what’s most important to healthcare providers: their careers.

Consequences of Drug Diversion are Devastating for Florida Healthcare Providers

In this case, our client, a registered nurse in the cardiac surgical intensive care unit, discovered that a patient’s Fentanyl bag was empty. She couldn’t find the nurse who was assigned to the patient, so she opted to address the situation herself because the patient was sedated and on a ventilator. After pulling a 100 mL bag of Fentanyl, she ran into the assigned nurse, explained the situation, and showed the new Fentanyl bag.

However, our client forgot to grab the lockbox key required to access the empty bag of medication on the IV pump. Previously, all nurses could access the lockbox with their own key, but the new rule called for nurses to retrieve the key from the Pyxis when also removing the medication. Apparently, this was a relatively new practice, one which our client stated that the nurses were never trained.

The assigned nurse went to grab the key and unlocked the box, then our client removed the old Fentanyl bag and replaced it. But as our client pulled the air from the line, some of the medication was unintentionally drawn into the syringe. Consequently, our client then attached a needle to that syringe and injected it back into the bag so as to not waste the medication. After that, she proceeded to complete the co-sign of the medication administration, and she and the assigned nurse exited the room together.

The following morning, the assigned nurse implied that our client may have cut the Fentanyl bag the day prior, for which our client reminded the assigned nurse of having witnessed administration of the Fentanyl bag. The assigned nurse proceeded to tell client he felt something was “off” because, according to the rate of the IV pump, the patient should not have needed a replacement bag.

A few days later, our client’s former director said that 80 mL of Fentanyl was missing from the bag that our client had replaced. After our client explained what had occurred, she was reported to the DOH on allegations of drug diversion, misappropriation, and possible impairment. She also was reported to the police, as drug diversion is technically theft.

From a criminal defense point of view, the possible consequences would have been devastating. Our client was facing possible arrest on charges of grand theft of controlled substances, a third-degree felony punishable by up to five years in prison; possession of Fentanyl, a second-degree felony that would net upward of 15 years’ incarceration; and additional felony convictions.

How bad can becoming a convicted felon be? Very. For one, it results in the loss of basic civil rights such as the right to vote, the right to sit on a jury, and the right to own, possess, or use a firearm. Convicted felons may also be denied licensing in healthcare professions and barred from practicing as physicians or nurses.

Among other collateral consequences:

At some point, a police detective who was trying to find our client (who was out of town, as a means of clearing her mind following the drug diversion accusations) contacted our client’s mother. The detective told the client’s mother that he just wanted to ask a few questions and “clear things up,” left his card, and asked for our client to call to call him as soon as possible.

That’s when our client’s mother called us. And we got to work.

Why Florida Healthcare Providers Accused of Drug Diversion Should Talk to a Lawyer First — and Not to Investigators

Jonathan Meltz, our Miami-based criminal law attorney in Chapman Law Group’s White Collar Defense & Government Investigations group, took on our client’s criminal matter; while Sara Bazzigaluppi, of our Professional Licensing & Regulatory Affairs practice, helmed the licensing portion of the case.

We immediately instructed our client and her mother not to speak to the detective about the case. Why? Because the U.S. Constitution demands our client — and every U.S. citizen — is presumed innocent until proven guilty. She is under no obligation to answer any questions. Not talking to law enforcement meant she would do nothing to reduce the presumption of innocence. The moment she would start talking to the police, the presumption of her innocence would fade — and fast.

The reality is, police needed our client to talk, so as to help them prove the case against her. If they had enough evidence to arrest her without questioning her, they already would have by them. And upon review of the investigation, Jonathan knew there was not enough evidence for the police to arrest our client.

Jonathan immediately contacted the detective and put him on notice that he would represent the client with respect to any and all criminal investigations, including allegations of a drug diversion or theft from the hospital.

Jonathan advised that our client did not wish to speak with law enforcement without counsel. Moreover, Jonathan invoked her Fifth Amendment Right to Remain Silent as well as her right to counsel, pursuant to the Fifth, Sixth and Fourteenth amendments to the U.S. Constitution, and Article I, Sections 9, 12, and 16, of the Florida Constitution. By putting the police on notice, any further attempt to speak with my client would be viewed as misconduct and illegal action. Any statements made by our client would be excluded from use as evidence in any court case.                     

By acting as a shield or buffer between the police and the client, we successfully prevented the client’s arrest. Just as Jonathan predicted, without interviewing our client, the police had insufficient evidence to develop probable cause for arrest. Meanwhile, Sara was able to have the licensing investigation halted.

The case was closed, the investigation was dropped, and our nurse client is back on the job.

The Florida Healthcare Attorneys at Chapman Law Group Are Leaders in Healthcare-Based Criminal and Licensing Matters

Chapman Law Group understands that criminal proceedings will likely result in professional licensing or administrative actions. That is why we provide comprehensive and aggressive legal representation for physicians, nurses and others who face criminal prosecution.

Our goal is to not only streamline the process, but also to ensure that the criminal conviction is handled in such a way so as to limit the impact on your professional license.

At Chapman Law Group, our healthcare-based criminal defense attorneys and regulatory/licensing lawyers aggressively defend Florida healthcare providers who are facing criminal charges and licensing action before the DOH and their respective boards. 

We have obtained pretrial dismissals, not-guilty verdicts, and beneficial plea agreements in state and federal courts across Florida, and have kept providers from losing their licenses.

We have 35 years of extensive experience in defending health professionals faced with criminal charges, including:

Our licensing and regulatory lawyers advise and represent healthcare providers on such licensing matters as:

At Chapman Law Group, healthcare law is all we do, and our clients are licensed medical professionals, including:

Our Florida offices are in Miami and Sarasota, Florida. We serve all of the state for Florida medical licensing defense, including Miami, Jacksonville, Tampa, Gainesville, Orlando, West Palm Beach, Lakeland, and Sarasota, as well as Miami-Dade County, Broward County, Pinellas County, Brevard County, Hillsborough County, Duval County, Escambia County, and Orange County.

You worked hard for your license. We are here to help you keep it. Contact us today so we may help preserve your livelihood.

Need an Attorney? Contact us now!

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