Texas Medical License Complaints with Kerry Bloodsaw

Transcript

Narrator: 0:00

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney.

Cimone Murphree: 0:15

Well, thank you so much for being with us today, Ms. Bloodsaw, we are very excited to talk to you about the varying medical license boards and you know how they are similar and how they may be different and some tips and tricks to know. How are you doing today?

Kerry Bloodsaw: 0:34

I’m doing good. I’m doing good. Thanks for having me. Yeah, I mean, I think this is going to be a really interesting topic. There are obviously a lot of boards associated with kind of medical licensing and some of them are pretty different, but a lot of them are the same. So I wanted to kind of just broach a few and talk about the ones that have a similar kind of timeline, a similar path and hopefully we can kind of help some people out.

Cimone Murphree: 1:02

Before we get into talking about the regulatory boards, can you just give us a little bit of background about yourself and what brought you to your position at Bertolino Law Firm?

Kerry Bloodsaw: 1:15

Yeah, so I went to law school in Atlanta and I practiced as a public defender there for about six years A little under six years and then my family life moved me to Texas and Bertolino was one of the first jobs that I kind of came across. At the time I wasn’t licensed, I wasn’t barred yet in Texas, I was still just barred in Georgia. So I wasn’t really sure what I was going to be able to do and I had also only ever done criminal law, which some people might know, but certainly lawyers would know, is very different than, you know, administrative law or civil law. And so I just that was my only background and I was kind of looking for something that would pique my interest. You know criminal law is obviously exciting and interesting and stressful, but you know you get a lot of good stories and I have no interest in being bored, you know, all day at work and when I was looking at Bertolino. You know, finding some similarities between criminal law and administrative law was actually kind of surprising to me, and we deal with a lot of criminal issues still. You know they go hand in hand. But a lot of the issues, the allegations kind of the that these clients deal with is similar to what I did in Georgia, and so I applied and obviously got the position eventually got barred. And so you know, now I’ve been with Bertolino for five years in August I think it is.

Kerry Bloodsaw: 2:58

So it’s definitely interesting and I definitely feel like there aren’t a lot of that do what we do it’s. I’ve been told that by clients and I definitely feel like there aren’t a lot of that do what we do it’s. I’ve been told that by clients and I certainly hadn’t really ever heard of it till I started doing it. So I think it’s kind of important to get the word out to help clients, even maybe before they have a complaint or they have an issue. So hopefully that’s what we can kind of do do today.

Kerry Bloodsaw: 3:24

And so, in of kind of like the medical boards, right, there’s a variety of degrees that people can have. The ones that I sort of wanted to talk about the Texas Medical Board, the Board of Nursing and then the Board of Pharmacy all have a similar investigative kind of pathway. But there’s a lot of other boards, obviously chiropractors, veterinarians, dentists and then occupational and physical therapists. So you know, if you’re listening and you’re one of those licensees, you know a lot of this stuff is still going to apply. Some of it won’t, but a lot of it definitely will. So I think there’ll be kind of takeaways for everybody on the in the medical field.

Cimone Murphree: 4:11

So can you kind of tell us about you know, I guess maybe a general overview of the Texas Medical Board, the Board of Nursing and the Board of Pharmacy? What are their roles?

Kerry Bloodsaw: 4:26

Yeah. So I mean as licensees, probably know, and like, obviously, as a lawyer, you know I’m barred in Georgia still and here in Texas. So you’re aware of this entity that kind of controls your whole life and you think about it all the time when you do certain things because you know maybe most generic civilians are just going to think about, oh, I shouldn’t do this, you know that’s a crime or I could get arrested, or, you know, am I going to speed past this cop or am I going to slow down and hit my brakes? As a license holder, you kind of, you know, you think about that obviously, but you also kind of think about, oh, am I going to get a complaint? Like what happens if I talk to this client or this patient this way, are they going to, you know, file a complaint? And in reality it probably happens a lot more often than people think because these regulators are 90% of the time beholden to the people that file the complaints. So it doesn’t take much to have an investigation get opened.

Kerry Bloodsaw: 5:24

Most of these boards, you know, specifically TMB, board of Nursing and the Pharmacy Board are going to open any complaint that they get. So they have the jurisdiction if they get the complaint as long as it’s. You know you’re not a pharmacist and somebody sent a complaint to the medical board. You know if they have jurisdiction over it, if you are licensed based on this regulator, then they’re going to investigate it, even if it is, you know, flat out ridiculous or that there’s, you know, bad motive from the complainant.

Kerry Bloodsaw: 5:57

These regulators have a job to kind of thoroughly go through any allegation. They have a duty to kind of investigate on their end, talk to you know who they need to, but they also are obviously going to reach out to the licensee and most of the time that’s probably where they’re getting a lot of their information from. And so that’s why it’s kind of so important that you know a licensee knows that understands the process and, you know, responds. Because I think a lot of the time people have the thought process of, like, I’m not going to, I just won’t say anything and it’ll go away, you know like, and that’s actually going to make everything worse. So you know the board wants to hear from you. Sometimes it just depends on what you say. You know, don’t say too much, but don’t say you know too little. Um, and so these agencies you know that’s their whole job is really just to like figure out is there validity to these is or is there not?

Cimone Murphree: 6:56

Can you take us through um? You know some of these proceedings that may happen, like, say, a license holder um receives a, receives a complaint. You know what are the next steps as far as what should a license holder do and then also what is happening at the agency at this stage.

Kerry Bloodsaw: 7:15

Sure, yeah, and that’s actually really good questions and a good jumping off point. So for and like I said again, this is TMB, the board of nursing and the pharmacy board. So with all three of these boards, when you get your complaint with the board of nursing, you’re going to get the notice and a lot of people don’t know. But now you know that you need to ask for the investigative file. They call it the investigative file, but it’s basically all the evidence that the board has received against you. So generally, by the time they get a complaint, then the board is going to do their due diligence. They’re going to reach out to whatever agency is involved in the complaint. If something happened at a hospital, they’re going to reach out to the hospital. They’re going to ask for records. If it’s just a single person making a complaint, they’re going to reach out to that person and say where, where’s the information, where are the documents? And so, unlike a lot of boards, unfortunately in Texas with the board of nursing you are entitled to all those records. So a lot of times nurses you know might hire us after they’ve already responded and they haven’t even gotten the evidence, which is kind of like, you know, if you’ve seen any like law drama. That’s not what you want to do. You want to know what the facts are, what the evidence is against you, and then you respond. So with board of nursing, you do have to ask for the evidence, but you will get it.

Kerry Bloodsaw: 8:38

With the pharmacy board, with TMB, they will first send you a notice of the complaint. Tmb doesn’t give you anything at that time. So generally it’s important, if you get a complaint from TMB, to be pretty limited in your response. You want to respond, you have to respond, but you’re not getting the evidence at this point. So you don’t want to make all these admissions and then come to find out that maybe TMB didn’t have all that information.

Kerry Bloodsaw: 9:10

Same with the pharmacy board when they send you the notice, they will just automatically send you all the evidence that they have against you. So, board of nursing, you have to ask for it, tmb, you’re going to first get the notice, but once you respond to that notice then you’re going to get all the evidence. So, kind of you know, tread lightly until you have all that in front of you and then the pharmacy board, they’ll just dump it all out in front of you and give you everything all at once. So I’d say the key kind of things to look at there is like once you have the evidence in front of you, then the next step is going to be okay what do they have and how do I need to respond at that point?

MJ Hooper: 9:48

Ms. Carey, can I interrupt real quick and advise the listeners and reviewers? These complaints are being sent to you via mail. Unfortunately, they do not send them via your email. So everybody needs to pay attention to your mail because there are deadlines associated with those.

Kerry Bloodsaw: 10:06

Yeah, 100 percent. There’s always going to be a deadline Something to know. With TMB and the pharmacy board, those deadlines are pretty stark. They’re not going to change. You need to get your information in with the board of nursing. That deadline will toll as soon as you ask for that investigative file. Then you don’t need to worry about anything until you get the file. Um. But yeah, these boards live in 1981 and they still mail stuff. I don’t know why I have to remind myself to check the mailbox. Who does that? I don’t know, um.

Kerry Bloodsaw: 10:41

And so you always want to make sure that they have your right address, because the thing about missing a notice or getting it and then putting it under the couch and like not responding because you’re like this will go away, is you’re just going to tack on more. You know you’re, you’re avoiding something, you’re avoiding it and honestly, with these three boards in particular, but really with all boards, there’s a statute in there that says you have to cooperate. So sometimes people think, oh, you know, this is kind of like a criminal case and don’t talk to the police and you don’t have all those rights that you do in a criminal situation. So you actually are required to respond and required to give information and sometimes required to give records. Sometimes the records requests might be going directly to you. You know, if you’re a doctor and the patient filed a complaint, you know TMB is going to want those records and they’re going to come from you. And if you don’t give them those records, you’re going to have another violation on your hands.

Cimone Murphree: 11:46

See, I’m a license holder. I have received a complaint from the Texas Board of Nursing. I’ve requested that my you know evidence be sent. What comes after I receive my evidence file?

Kerry Bloodsaw: 12:02

Yeah, so once you get your evidence right so with TMB you kind of have that first initial notice, then you get your evidence. Pharmacy board you get it all at once. Board of nursing you’ve requested it, now you have it. So at that point you really want to take a look at what the allegations were, have they changed, and what the evidence is in front of you right. Obviously, 99% of the time you, the licensee, is going to know what you did, what you did or what you did not do, and so a lot of time people just want to kind of say what happened and they’re just going to like vomit all this you know stuff out to the board. That the board’s like I didn’t know that, but thank you, let’s add more to your you know plate. So it’s important that you’re really looking at what the allegation is and what is that evidence that they have, because you don’t, you have to respond, you have to be truthful, but you do not need to give more information than necessary. So perfect example we had a case with a nurse and the allegation was that he provided the wrong medication to a patient. The patient took it, the patient got sick and the patient was hospitalized. So you know, putting aside causation and things like that, when we requested the evidence from the board, there were all these statements from all these people that said he did it, he did it, he did it, he gave me this, he did it. But the thing that was missing from the file was the actual medication order from the doctor. And so one thing to remember too, especially with the board of nursing, is, once you get that evidence, if you feel like something’s missing that could be helpful, then you can do a supplemental request, you can ask for more information. The board of nursing may go out and try to find it, and in this case they did, but they ended up not not having what we were looking for. So, at the end of the day, maybe the client did provide the wrong medication, but it was because of what a physician had ordered, and so in that scenario we needed to see what that doctors, you know, had written on the order, because if he had messed that up, then no matter what the client did, you know the evidence can’t substantiate that allegation, because he provided the right medication. It was just the wrong one per the order, and so in that case you know the hospital or the facility medication. It was just the wrong one per the order.

Kerry Bloodsaw: 14:25

And so in that case, you know, the hospital or the facility, whichever it was, they never had the order or they couldn’t provide it to TMB or, I’m sorry, to the board of nursing. The board of nursing couldn’t provide it to us and so they, you know we had to argue that they needed to dismiss it and that’s what they did. So it’s important when you’re looking at the evidence to not just kind of think, maybe factually what happened and maybe this is easier said than done, because I’m a lawyer and sometimes I don’t understand other people’s thought process, and that’s why, you know, lawyers are important and maybe a little annoying, but you need to really look at what it is that they can show, and if they can’t show the allegation, then that’s what you argue. And that’s kind of why these boards are, I guess, for lack of a better word helpful or better than some other agencies, because they are giving the licensee the right to examine this evidence against them, and not all boards do that. So once you’ve kind of reviewed everything and you put that response together, then that goes out, and then there’s, you know, a period of time where you’re waiting to hear back from the board.

Kerry Bloodsaw: 15:34

With TMB and the board of pharmacy they do what’s called an informal settlement conference.

Kerry Bloodsaw: 15:41

We call those ISCs, and so normally right after you submit your response, about 15 days later, then you go and present yourself to the board and at that point you know they’ve gotten your response, you’ve written your response, so they know kind of what your arguments are, they’ve seen your evidence.

Kerry Bloodsaw: 15:59

But this is kind of an additional chance for the licensee to talk to the board to answer any maybe specific questions they have. It’s also just a good time to put a face to the person. You know, a lot of times these ISCs are beneficial to us, to the license holder, because it kind of puts in perspective what’s going on or what happened. And so with TMB and the board of pharmacy you would have your ISC and then the the board would come back and provide you with a result. With the board of nursing you don’t get an ISC, um, but you do kind of get several chances to provide a response, a supplemental response, kind of any additional evidence. They just don’t do it in such a formal fashion like these other boards but basically after kind of all the information is disseminated is when the boards will come back and say hey, this is how we think this should go. This is what we’re going to offer you.

Cimone Murphree: 16:58

Interesting. So there’s a lot of. It’s not a very quick process, nor does it seem very black and white. It is like there are a lot of different factors that could come into play over the course of these proceedings. Oh for sure, yeah.

Kerry Bloodsaw: 17:17

No, justice is slow, justice is not fast, it is not at all. Slow Justice is not fast, it is not at all. It can take years, I mean, unfortunately, to get a case resolved, resolved, and so it’s definitely about being patient. The one thing I try to remind clients of, and just to listeners out there now, is, obviously it’s frustrating, obviously it’s stressful, it’s it’s going to be something you’re thinking about, but, um, rushing the process one, you can’t do it. So you might as well just put that out, you know, put that outside for the summer, because you’re not going to be able to change you know what the boards are doing. Rushing them is not going to, you know, make them do anything any faster.

Kerry Bloodsaw: 18:01

And remember that these investigations are confidential.

Kerry Bloodsaw: 18:05

So, although you know your emotional stress is on 10 and you’re like doing, you know that nobody else knows about the I mean, besides obviously, the complainant.

Kerry Bloodsaw: 18:18

It’s not mentioned on your license or anything like that. There’s no notation with tmb or the board of nursing or the board of pharmacy that you’re under investigation, that a complaint’s been filed against you. So, although it’s something that you’re gonna, you know, stay up late at night racking your brain about, it’s not something that you need to worry about like, oh, this is, people will think badly of me, and people know and people are talking about it. So, even though it does take a long time that’s just something I always try to remind clients of is like, if you can kind of, you know, calm yourself and and try to put that out of your mind, it’s not affecting anything else, or at least it shouldn’t be. Nothing gets public until after you’ve received an offer and if you decide to reject it and you move forward with a hearing, um, with TMB and with um, the board of nursing, they do mark on your license verification that you have formal charges pending against you. But before that kind of what we’re talking about now, you know, nobody knows.

Cimone Murphree: 19:29

During the investigative part. You know sort of that innocent until proven guilty. Right, you know they’re not going to raise red flags and make a bunch of noise around it until you know everything is said and done.

Kerry Bloodsaw: 19:37

Right, right, and I mean you know the boards obviously have their job and they have to protect the public and make sure that licensees aren’t out there you know committing crimes and doing crazy things, but you know they also need to protect the licensee too. I mean, a majority of the people on these boards are going to be license holders. You know they’re going to be you Right. You know they’re going to be you right. So you’re basically being regulated by your peers a lot of the times, and so there is an understanding of that, which I think is also an aspect of what comes out during, like ISCs, because you know, like with TMB, you’re, you know, probably speaking to another physician. You know, with the board of pharmacy, there’s going to be a pharmacist that might be asking you questions. So there’s kind of a more level playing field, kind of a mutual understanding that maybe an outsider, you know, just like a general counsel, a staff attorney, somebody like that might be missing, which is obviously why they have these boards.

Cimone Murphree: 20:39

Say I don’t like what happens at that informal settlement conference. If I, you know, I go and the board comes back to me with an offer, but I don’t like that offer, I want to reject it. What happens then?

Kerry Bloodsaw: 20:53

Yeah. So well, just to back up a little bit, once you get that offer, I can kind of break down what it could be right. So obviously, number one is dismissal. Right, we don’t have enough evidence. We don’t think this warrants action. Dismissed, that’s case closed. That’s happy happy life.

Kerry Bloodsaw: 21:12

You know we’re good on there. The next kind of option after that for some of these boards is they’ll have a private disciplinary action. So the board of nursing, they call it a corrective action, tmb and the pharmacy board call it a remedial plan. These are non-disciplinary actions. So the board’s basically saying we don’t love what you did, we’re not huge fans, but we don’t think that this needs to be public disciplinary action. We don’t think you need to be punished, we think you need to be corrected to have, you know, some remediation. Basically, we think you need a little help. And so here you go.

Kerry Bloodsaw: 21:51

Those are generally, you know, positive for the licensee if it is in fact something that they did and it is in fact something that we think the board can prove, because it’s basically giving the license holder the benefit of the doubt and saying we don’t want to put this out on blast. You know, up on billboards that say, hey, you’re not a good guy, but we think you need to do a little bit of extra work. So those are good, I mean to get um and those are private, right, I mean to get and you said those are private right, you said that those aren’t public information.

Cimone Murphree: 22:26

So that’s a very good question.

Kerry Bloodsaw: 22:29

They are private to an extent. So the corrective action with the Board of Nursing is private. It’s going to say non-disciplinary, it’s confidential. If you take a corrective action it’s not on your license anywhere With TMB. A remedial plan is going to say that it’s non-disciplinary. So if you were to be, you know, ever asked, have you ever been disciplined by TMB? Your answer would be no. It says not disciplinary action. But the remedial plan is published on your license verification. So although it’s not discipline, it is something that somebody could see and take note of. And with the pharmacy board it is a remedial plan, it isn’t disciplinary.

Kerry Bloodsaw: 23:13

I do not believe that they are public. So, for whatever reason, tmb decided that they thought that needed to be published, even though it’s not disciplined. But it’s still kind of the middle ground between getting a dismissal and getting the next option, which would be a board order For all three of these boards. A board order is going to be public. It’s going to be reported on your license verification. It’s going to be reported on your board website. It’s going to go out in the newsletters. Whether people read those or not, who knows, but it is going to be disseminated in many you know fashions, and then it’s also going to get reported to the National Practitioner Data Bank. So, generally, as, like a medical professional, that’s a data bank you don’t really want to be reported to and so, no matter what’s within the order, all of those things are kind of the impact, the negative impact, of taking an order, and that’s something that people should know and sometimes people don’t know. You know the what happens if I decide to sign this order, right, like you asked what, what happens if maybe you don’t want to take it? But some people don’t understand what happens when you take it. So if you are, you know, offered a board order, understand the public nature of that and kind of the implications that could happen with jobs and with insurance carriers, right, I mean, insurance is like with medical people, and sometimes if you have disciplinary actions, you can’t, you know, be a provider for certain people and they’re going to kick you off or they’re going to take your privileges from certain hospitals and things like that.

Kerry Bloodsaw: 24:59

So there’s a lot that goes in to effect once an order like that is signed, no matter what’s in an order, for all three of these boards it can be, you know, continuing ed. So you have to do some CE hours you have to pay a fine. Sometimes they’ll put you on like monitoring or probation. You know whoever your supervisor is has to report to the board, you know, quarterly. They can also suspend. You know they can suspend your license a year, 90 days, 60 days, 30 days and then obviously they could take your license. That would be the worst aspect of an order.

Kerry Bloodsaw: 25:37

But no matter kind of how big or small the sanction is, if it’s in that order you can guarantee. You know that it’s going to be public, that it’s going to go to the data bank and that it’s probably going to have an impact on your other. You know contractual relationships been so if you are offered that order and you think this is totally unfair I didn’t do this or they can’t prove it or they’re being ridiculous, which is not, you know, wouldn’t be the first time we heard that you are not obligated to accept it. The only time that the board can take action without your consent is when you’re doing that thing we talked about earlier, when you’re not responding and you’re putting the complaint under the couch and not looking at it. Then you’re going into default territory. But otherwise you’re going to get that offer and then you’re going to have a certain amount of time to accept it or reject it.

Kerry Bloodsaw: 26:31

And if you reject it, then the case would move from that kind of what we talked about earlier private investigative phase into a more public legal domain. The investigator goes away, a staff attorney gets attached, formal charges get filed and it becomes a lot more serious very quickly and a lot of people kind of don’t understand that or anticipate that. They just think, oh, I’m unhappy with this order, yes, let’s keep moving forward. And then when you explain to them, now it’s going to go before a judge and the board is going to present evidence and you have to testify, Then they start to, you know, freak out and be like, well, I didn’t sign up for this, and it’s like but that’s the only other option. You know, if you don’t agree with what the board wants to do, you have your due process. It might seem scary but that’s, you know, the only lane that we have available to us. So you don’t have to accept, but you do kind of have to understand and accept the consequences of moving, you know forward.

Cimone Murphree: 27:32

Yeah, sounds like you really need to fully understand what you are being offered and, like you said, the implications that it could have on your license even years down the line. You know if you, I know that sometimes licensees or license holders are offered a voluntary, you know suspension of their license and you know that even in itself can can affect your license years down the line, right?

Kerry Bloodsaw: 28:02

So most of the time. So it wouldn’t be a suspension, it would be like a surrender, surrender, yes.

Kerry Bloodsaw: 28:08

Voluntary surrender, yeah A lot of times if a board says, you know, we’ve come to the conclusion that basically you shouldn’t be licensed anymore, at that point in the investigation they would offer. Most boards call it a voluntary surrender, where you’re surrendering your license. If you continue to fight it and you push and you go all the way to a judge, then it would be a revocation. At that point the board would be taking your license. Most boards give you that opportunity in the beginning to say we won’t take your license, please hand it over to us nicely, and then we’ll all go about our day. What’s right in front of them is it’s voluntary, yes, but it’s still disciplinary action. And you know, when you look at the face of it it’s probably going to say that you did something wrong. And you know most people don’t just voluntarily relinquish their licenses for no reason. So even something like that would probably trigger. You know, if you went to another state to get the same license or you stayed in Texas and you just tried to get a different license from a different agency. You know all of those things, whether you surrendered it or not, are probably going to be questions that you’ll have to be asked and it’ll be. You know something that whatever agency you’re applying to is going to look into. So, although it sounds better, you know it’s still a discipline, you know it’s still a public action. Soa is our agency, the State Office of Administrative Hearings. There are kind of jurisdiction for these admin cases and about the time that I started at Bertolino, you know was shortly after or shortly before COVID, everything used to be in person and then when COVID hit it went remote and it went like this and it never went back. So it does sometimes feel odd because you’re not in a courtroom with a judge, but you’re getting the same result the board is going to present their case, they’re going to present their arguments, then you know we would go and provide our defenses. Same result the board is going to present their case, they’re going to present their arguments, Then you know we would go and provide our defenses. Unlike in that criminal case, like we kind of mentioned before, the respondent is what the license holder is called. The respondent has to testify. So they are. You know they could be called by the board, they could be the board’s best witness, depending on what the allegations are, and so you know the license holder may testify and then anyone else that you know is a witness to the case would testify.

Kerry Bloodsaw: 30:50

We are able to, you know, provide our defenses in of, you know, factual and legal arguments, but also just in mitigation. You know, a lot of times we’ll call character witnesses. A big part of kind of defense in general, most of the time, is mitigation right. A lot of times the person did what they did and so you don’t have any argument but to say, but come on, it wasn’t that bad, and so that argument is best told by other people that the you know license holder knows and that those character witnesses that can support that.

Kerry Bloodsaw: 31:21

You know, this was a mistake, this was an isolated incident, he’s, this isn’t a pattern of risk and um. So normally those arguments kind of come in towards the end, um, and then the judge takes it all under advisement, normally about 90 days later. So again, nothing quick, nothing around the corner. The judge would issue what’s called a proposal for decision. We do have a somewhat of like an appeal process once a judge issues that proposal and says, hey, look at this, these are the facts, these are the conclusions of law, and this is what I think should happen. You know, I think they should dismiss it. I don’t think he violated anything, or I think he should, you know, go leave the state of Texas.

Kerry Bloodsaw: 32:07

He can’t say that, but you know he can issue, you know, propose whatever sanction he thinks is warranted. And then we can file what are called exceptions, which are basically kind of like hey, judge, take a second. Look. I don’t think you heard me when I said X, y and Z 90 days ago. I’m reminding you how smart I am. Please listen to me again. And so you can do that.

Kerry Bloodsaw: 32:30

And so sometimes the judge will change their decision or their proposal. Most of the time they don’t really, but it is kind of another appeal avenue that we have. And then, once we have that, that proposal goes back to the board. So the tricky thing about administrative law that our clients are always like what, like, what Like. That doesn’t make sense. So I get a judge and they hear everything, and then it still goes back to the board. Unfortunately, that’s what the legislature thought was best. And so you get your third party, you get your neutral fact finder to make a proposal, but, depending on what that is, the board does get the final say.

Kerry Bloodsaw: 33:08

So there’s some legal restrictions. Certainly if we feel like the board totally disregarded what the judge said, you know, changed it up, went back, did what they wanted to do, you know there’s appeal processes and to deal with that. But if it’s strictly about say you know what the punishment should be, right, like the judge found you did what you did, but the judge thinks you should just get an order with CEs, it can go back to that board and the board can say, nah, we think this is much worse and you’re going to be, you know, suspended for two years or whatever. They have that ability based on you know the statute, and so that can kind of be a little bit of like a mind twist, I guess for a lot of people, because you think a judge should be that final, you know, say so.

Kerry Bloodsaw: 34:01

But with administrative law that board will always get the final say and I think they originally the legislature, did that because, kind of like we talked about before, you know policing your own people, you know monitoring, you know you.

Kerry Bloodsaw: 34:16

I think they wanted the board to get the final say because they felt like the board would have the best ability to discipline their own people. Unfortunately, I think the idea was supposed to benefit the license holder and I think a lot of times it actually doesn’t, because the board is actually being more strict than a judge who’s really looking at the law and saying did the board meet their burden and you know, most of the time when we win you know court cases they get dismissed and it’s, you know, always strictly based on the board didn’t prove their case, like they just don’t have enough evidence to meet these standards. You know it’s not beyond a reasonable doubt, it’s preponderance, it’s a little more than you know 50%, so it’s the lowest standard, but it’s still a standard and so a lot of times they can’t meet that and so you know the respondent gets that victory, but it does still always go back, go back to the board for that final decision.

Cimone Murphree: 35:21

It’s an unfavorable decision, you know? Is there any room for negotiation once it goes back to the board, or is it, you know, final, final?

Kerry Bloodsaw: 35:31

Yeah, most of the time, by the time, kind of, the judge like cracks his gavel for opening statements, it’s that’s kind of what it is sort of. The time for negotiation is passed because you negotiate so you don’t have to go to trial. If we’re already having trial, nobody wants to talk to you anymore, like that space is closed, you’re uh, you lost. Um, you know. So at that point some boards do have what’s called like a ratification hearing, so essentially after the judge makes their decision, they’ve sent it over to the board. Now the board is going to meet and decide, and so with some agencies you can appear at that meeting and kind of plead your case again or of go back over. You know why the board should agree with the judge or should deviate from the judge. Some agencies have that um kind of last ditch effort, final step for a license holder to be heard not all of them do, though it’s a different ball game, for sure it’s definitely, like I said, you know a niche area that a lot of people don’t know about.

Kerry Bloodsaw: 36:39

You know, I didn’t know anything about this type of law until I started doing it, and there’s just a lot of differences between criminal law and civil law. So if you don’t have the right lawyer and they’re advising you on something that they probably shouldn’t be advising you on which, unfortunately, we do see a lot with clients that come in that kind of got advice from lawyers that don’t do this kind of work they can really put you in a bad spot because it’s not the same, it’s very different, and they have, like that, that legal mechanism where it’s like going back to the board. You know, an attorney that doesn’t do this would think that was crazy and would possibly even maybe not even understand how that would work, because in any other type of litigation, the judge says what the judge says, and that’s the case, but that’s not what it is here. So it’s definitely very interesting and very, you know, specific and something that you don’t want to mess up.

MJ Hooper: 37:41

And another important reminder is it’s a marathon, not a sprint.

Kerry Bloodsaw: 37:44

Yeah, you’re not sprinting anywhere. You’re sprinting, you’re moving at a glacial pace and the wheels of justice they turn slow. And that’s just something you’re prepared for. And especially if you’re going to go to trial, because you know trial is the last resort. 10% of cases go to trial. The rest of them, you know, resolve pre-trial. And that’s because there’s so much work that goes into trial out of you and it takes a long time to resolve and you know it’s not quick. But obviously, if you have a good case or this is you know your whole life and you’re not ready to kind of bear down and accept an offer like a disciplinary action, then you know that’s your right. And that’s kind of why we have the ability to have trials and why we want to make sure that we do them.

Kerry Bloodsaw: 38:35

Because these agencies, you know, are there to protect the public, but they’re also there to, you know, protect the license holder to a certain extent in of like making sure they know what they are supposed to be doing and not doing. And you can’t just, you know, an agency can’t just do what they want, they can’t just take your license, they can’t just, you know, say oh, you did this and make determinations and then that’s it Like. You get due process. Your license is important. It’s, you know, some people’s whole life. I, you know, don’t like to think that I’m a lawyer first. I have other things that are important to me, but obviously my bar license is one of the top ones and I’m sure that’s the same for anybody that has a license. That’s how you, you know, make money and provide for your family, and so agencies know that and you know they need to do what they’re supposed to be doing. They need to be regulated. They need to be held accountable as well, which is, again, something that a lot of people don’t know.

Kerry Bloodsaw: 39:36

You know, if you go through this process and you don’t like the outcome, go petition the legislature to change the process. You know you people don’t know that you are the only one that’s going to make those changes. You know the board is probably not going to be there to help you or lose jurisdiction or, you know, take money out of their you know fund. That’s going to be the public that’s going to say, hey, I went through this whole complaint process and this is crazy. Y’all like let’s go down to Austin and make some noise and it happens and boards get, you know, reviewed and they get monitored and they get penalized if they’re not doing the right. You know things they’re supposed to be doing the veterinary board to be one of them. They weren’t doing what they were doing and now they’re being basically supervised by TDLR. So it’s not to say that you know some of these policies and stuff can’t change and it might be best, you know, for people to kind of know about this stuff now to say, yeah, I don’t like this, I don’t want to have to have a complaint and deal with all this. I’m going to head down and, you know, pound the pavement and make some noise and see if we can make some changes before I have to deal with this process.

Kerry Bloodsaw: 40:49

Proactiveness is always the best. Yes, absolutely. Anytime you’re in a stressful situation it’s always best to know what the process is and what your options are. Like, most of the time clients tell me they feel you know 90, like already lost their license. They don’t even know, like, what’s happening.

Kerry Bloodsaw: 41:18

So even when you say you know, like you know for the board of nursing, like don’t worry about this deadline, like we’re going to request the file, We’ll get the evidence, we’ll review it, we’ll talk about it, we’ll do a response, we’ll get an offer from the board, like just to know that, like that’s the process. And then to also be aware, like yes, this could take a year, this could take, this could be six months, like, so you’re not sitting there thinking like I’m going to hear tomorrow, I’m going to hear tomorrow, like just having that understanding of, like, procedurally, what’s going to happen. I think it’s just beneficial for your mental health and also beneficial for the license holders. Knowledge of like, okay, how am I going to respond? Well, I know I’m getting X, y and Z, so let me wait back and then you know respond once you know I have what I need.

Cimone Murphree: 42:03

It can be super scary to get a complaint, I mean, and I feel like they’re almost designed to kind of freak you out like that initially because they want you to respond and they want you to. You know, want you to respond and they want you to you know, ah, um. But yeah, consulting with an expert, consulting with an attorney, finding someone who is knowledgeable, like you said, can kind of walk you through what to expect, can really make all the difference immediately and kind of taking that pressure off of the client.

MJ Hooper: 42:34

We definitely like our clients to be responsive.

Kerry Bloodsaw: 42:37

We definitely need our clients to help participate in their own defense, but knowing, like you know, oh, I’m not going to be getting the email from the investigator, carrie’s going to get that email, like even that you know, like I mean, our generation doesn’t like to get phone calls, like we don’t like to not know what’s happening. So with that it kind of also kind of separates you and now the client can just kind of like be the client and you know I’m doing the work. I think that can also be helpful. For sure.

Narrator: 43:06

Know your Regulator the podcast that inspires you to engage.