Florida Nursing License Defense 101: Unintentional Waiver of Rights – Don’t Let That Happen to YOU.
Florida Nursing License Defense 101: Don’t waive your constitutional and due process rights.
Nurses have constitutional and due process rights when disciplinary action is threatened or actually taken against their license. These constitutional rights and due process rights exist because having a license to earn income and support one’s livelihood is so important. However, these constitutional and due process rights are more easily waived in administrative law cases – often unintentionally or unknowingly – than in criminal cases.
For example, defects in a Notice of Hearing may be waived if not properly raised. Knowing when and how to raise objections and exceptions to procedural defects is a complicated subject and requires knowledge of the laws and procedures and experience with the process.
One of the most important rights you have as a nurse is the opportunity to dispute facts and charges alleged against you, which is done by demanding a Formal Hearing before an Administrative Law Judge. The Department of Health has the legal burden to prove the facts against you with “clear and convincing evidence.” Failure to demand a Formal Hearing to dispute the facts and allegations is essentially an admission of fault to the allegations and acceptance of the charges filed. The DOH has a much easier time proving their case against you when a Formal Hearing is waived or is not specifically demanded. Failure to demand a Formal Hearing can be waived if it is not timely requested. Once this important right has been waived, chances are higher that disciplinary action will be taken against the nurse’s license, and it is more difficult and sometimes impossible to “undo” one’s waiver of this right, once it has happened.
As in criminal cases, the constitutional “right to remain silent” also extends to license disciplinary proceedings; however, the “right to remain silent” does not happen automatically and must be asserted specifically. It’s also important to know that asserting your “right to remain silent” can also have negative consequences if not done correctly and in the right circumstances. For example, refusal to answer and respond to certain discovery requests can be construed as an admission of wrongdoing. Having an attorney represent you can assure adequate cooperation with a DOH investigation, while also asserting your rights and protecting your interests.
Each case is unique, and every nurse’s situation must be assessed on an individual and case-by-case basis to determine the best strategy and course of action. In disciplinary proceedings, nurses should not waive their constitutional or due process rights unless they have been fully advised by their attorney that this is the best course of action, and a waiver of certain rights is in the nurse’s best interests.
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Marjorie Chalfant, RN, JD
Registered Nurse & Trial Attorney
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