The Law Offices of Brian E. Quinn

Could illegal evidence challenge be physician's winning defense?

In two recent posts, we touched on prescription drug monitoring. A recent criminal case against a Florida physician illustrates how much can be at stake when a prescription is scrutinized for medical malpractice and/or a challenge to one’s professional license.

Agents from the state department of law enforcement began investigating the physician in connection with two patient overdoses from painkillers and/or anti-anxiety medications. They apparently discovered enough evidence to convince a judge to issue search warrants for the physician’ home, car and office.

The agents discovered enough evidence to bring criminal charges. Now, the physician is mounting a defense against manslaugther, as well as 68 other alleged felony offenses primarily related to oxycodone trafficking. The first defensive challenge is a bold one: an allegation that the search warrants were obtained by intentional misrepresentations to the judge.

If the search warrants were not supported by probable cause, the resulting searches may be deemed unlawful. That, in turn, might taint any evidence uncovered doing the searches. In effect, the defense is requesting the court to exclude the evidence as inadmissible. Without that evidence, the prosecution may not be able to meet its burden of proof, or may even have to dismiss some or all of the charges against the physician.

Although a professional license investigation is not the same as a criminal proceeding, a clear connection exists between the two forums. The licensing board follows its own administrative procedures, and any findings in that administrative forum might also be used against a professional in a criminal setting. Consequently, a physician should consult with an attorney that focuses on professional license defense from the moment any inquiry is made about his or her professional judgment or behavior.

Source: Sun Sentinel, “Former doctor facing trial claims evidence in manslaugther cases obtained illegally,” Marc Freeman, Sept. 2, 2016

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