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melissawalker01 · 4 years ago

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DOPL Hearings

A professional license represents the culmination of years of perseverance and sacrifice. It carries with it not only the key to your livelihood but a new world of responsibilities. For many professions, these responsibilities are governed and enforced by the Utah Division of Occupational and Professional Licensing (DOPL). DOPL is a Utah state agency tasked with the licensing, investigation, and regulation of roughly 60 different professions within the state. From plumbers and dieticians to funeral directors and midwives, contractors, doctors, DOPL acts as gatekeeper and watchdog in an effort to preserve the legitimacy and integrity of dozens of professions. And these are, without a doubt, valuable functions, both to consumers and to professionals within these fields.

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But a DOPL inquiry represents a challenge not only to your competency and judgment but also to your very livelihood. At worst, your professional license could be revoked. But even a suspension or a public reprimand can have serious repercussions for your professional reputation. Once a complaint has been filed with DOPL, it goes through a preliminary review. That review results in one of three findings: I. no violation; II. violation, but beyond DOPL’s jurisdiction or authority; III. or violation within DOPL’s jurisdiction or authority. The first finding is, of course, the best outcome for a professional against whom a complaint has been made. When there is a finding of no violation, the file is closed and no public reporting of the matter occurs. The second finding generally does not end the matter. DOPL may pass the matter along to the appropriate authority to investigate, or DOPL may issue a letter of concern regarding the matter to the professional involved. A letter of concern will bring the issue to the professional’s attention, and it will give the professional a chance to respond. A letter of concern is not public, and it is not a disciplinary action. However, a letter of concern on file with DOPL may have an effect on DOPL’s determination on any future complaint. The third finding will trigger a more in-depth investigation by DOPL. At what point the professional is notified depends on the individual investigation. Depending on what the evidence shows, one of a few different types of hearings will be called. These are administrative hearings, as DOPL generally functions under the Utah Administrative Procedures Act.

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The hearings usually take the shape of a mini-trial. In every instance, the professional will have an opportunity to be heard, and to tell his or her side of the story. Navigating administrative procedures even the “informal” ones can be perilous. And your story and personality can get lost in the shuffle. If you’re facing disciplinary actions from DOPL, please contact a competent Lawyer. Informal Violations Are Resolved In One Of Three Ways: • Administrative Citations: A citation is the imposition of a cease and desist order in response to the unlawful or unprofessional conduct. Examples of citable offenses are practicing without a license, exceeding the scope of a license and hiring someone who is requires to be licensed that is unlicensed. • Stipulated Agreement: A stipulated agreement is a written settlement accepted by all applicable parties with regard to the involved individual’s license. It may also result in the voluntary surrender of an individual’s license. • Informal Adjudicated Proceedings: Is a case that is initiated by notice of agency action and decided or resolved by a file review as opposed to a hearing.

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Formal Violations Are Resolved As Follows

• Stipulation Agreements: Same as informal stipulated agreements. • Formal Adjudicative Proceedings: Is a proceeding initiated by a notice of agency action with a Petition and decided or resolved through a formal administrative hearing. This is similar in some ways to a civil court. Each party may present evidence in response to the case. An administrative law judge rules on all evidence, procedures and legal issues. DOPL is represented by an Assistant Attorney General and the involved individual may be represented by personal legal counsel. At the conclusion of the hearing, the Board considers the evidence and makes a recommendation regarding the status of the individual’s license. The recommendation is submitted to the director of DOPL who may accept the entire recommendation or may issue a modified supplemental order. Recent items that have been brought before the Board for consideration are: • Tele-dentistry • Advertising • Anesthetic and Sedation Rules Update • Administration of Botulinum Toxin and Dermal Fillers by dentists.

Pre-litigation Hearings in Medical Malpractice

• In Utah, medical malpractice tort reform began in earnest in 1976. Over the intervening years, the reforms have multiplied. New layers of limitations and procedural complexity have developed, seemingly by accretion. Almost nothing has been discarded. The result is a web of time-consuming requirements that a prospective claimant must successfully negotiate before ever filing a lawsuit. If you represent the petitioner, the goal of this process is to obtain a certificate of compliance. The certificate is a prerequisite to filing a complaint in all cases except those against dentists. • The First Step Petitioner serves a notice of intent to commence litigation on the care providers. Within 60 days, the petitioner must file a request for prelitigation review with the Utah Division of Occupational and Professional Licensing (DOPL) with a copy of the notice attached. • The notice must be served as a complaint or sent by certified mail. Claims against dentists, but not the dentists’ clinic and staff, require only a notice. Dentists are exempt from the prelitigation hearing requirements.

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• If the notice is filed less than 90 days before the statute of limitations would expire, the new limitations period is 120 days from the date of service. • Filing the request tolls the statute of limitations until dismissal of the prelitigation proceeding; 60 days from issuance of the panel’s opinion or issuance of a certificate of compliance; or the expiration of time for holding a hearing. • Setting a Hearing After filing the request, DOPL either issues an approval or a denial. If denied, the statute of limitations will no longer be tolled and the time will run until petitioner files a new request for prelitigation review. • Dismissal does not affect the new 120-day time limit if you served the notice within 90 days of expiration of the statute of limitations. The request must be filed with DOPL within 60 days of serving the notice or a new notice and request will need to be served and filed. If the request is approved, respondent files a notice of appearance of counsel within 15 days. The respondent may also request a specific specialty to sit on the panel. • The petitioner will then contact the respondent to establish two mutually-acceptable dates for a prelitigation hearing. Petitioner files a notice of availability for hearing and type of health care provider panelists requested. The dates must be at least 45 days after filing the notice of availability. If you fail to timely file, DOPL can dismiss your request though DOPL may grant an extension on request. • If a notice of availability cannot be agreed to, petitioner files an affidavit of respondent’s failure to reasonably cooperate in scheduling hearing. This must be filed within 180 days of the request and must state that the prelitigation hearing could not be held within 180 days of request. • If DOPL determines that respondent failed to cooperate and that petitioner cooperated, they will issue a certificate of compliance. If DOPL determines that respondent cooperated or that petitioner failed to cooperate, petitioner must file affidavits of merit within 30 days of this determination in order to obtain the certificate. • If the agreed dates are acceptable to DOPL, they will issue a notice of prelitigation hearing and panel composition. Parties have five days to object to the composition of the panel. • If at any time the parties stipulate that the hearing will serve no useful purpose, DOPL will cancel the hearing and issue a certificate of compliance. • If there is a scheduling conflict, the parties have five days after discovery and two days prior to the hearing to file for a continuance. It will only be granted in extraordinary circumstances. If the continuance is granted, the requesting party must establish two mutually-agreeable dates for rescheduling. They must be no later than five days after the order of continuance and the hearing must occur within 180 days of the request. • If the petitioner is the requesting party and a rehearing is not timely filed, DOPL will dismiss the request without prejudice. If the respondent is the requesting party and a rehearing is not timely filed, DOPL will establish a new date that is acceptable to the petitioner and disallow continuances from the respondent. • The Hearing Counsel for petitioner and respondent should arrange to attend the hearing with their clients. Prelitigation hearings are informal and nonbinding. There is no transcript made. There is no cross examination; however, the panel members may ask questions. The hearings are confidential. • Each party will have 15-20 minutes to make a presentation to the hearing panel. Each party may submit evidence by proffer. Attorneys have a wide variety of approaches. Most submit a selection of relevant records and explain their view of the case in the context of the records. They may choose to use medical imaging or diagrams or attach medical literature. Respondent physicians will often explain the care they provided. Some attorneys submit expert affidavits at the hearing. The petitioner may offer a brief rebuttal. • Following the hearing, the panel deliberates and decides whether there was a breach in the standard of care; and whether the breach in the standard of care harmed the petitioner. The panel issues its opinion within 30 days of the hearing. If the answer is affirmative to both questions, the opinion is meritorious and DOPL issues a certificate of compliance. If the answer to either question is negative, the opinion is non-meritorious. If non-meritorious, the petitioner must file affidavits of merit within 60 days of issuance of the panel opinion. Within that time, the petitioner may seek a 60-day extension to file the affidavits by submitting an affidavit for extension. • Affidavits of Merit There must be one from counsel and one or more from appropriate health care provider(s) that address the issue(s) that the panel found to be non-meritorious. • The health care provider affidavit regarding standard of care must be from a care provider with the same licensure as the respondent. If one respondent is a physician, there need be only one physician affidavit as to all respondents if the physician offers an opinion as to each respondent. • If the panel found no breach of the standard of care, the health care provider affidavit(s) must include an opinion that there was a breach and that the breach caused the harm complained of in the notice. • If the panel found a breach in the standard of care but no causation, the affidavit only needs to address causation. • After the affidavits are filed, DOPL issues a certificate of compliance.

Professional License Defense Process

A professional license investigation is generally initiated by Utah Division of Occupational and Professional Licensing (DOPL) after a complaint has been filed. Understanding the professional license defense process can help not only provide a sense of understanding during a difficult period, but also help you avoid pitfalls that may limit your defenses.

How Arrests & Convictions Affect Professional Licenses in Utah

If you’re a licensed professional in Utah like a doctor, teacher, Dentist, Contractor, or real estate broker your livelihood may be in jeopardy for sustaining certain kinds of criminal convictions. Authorities across the state are reviewing court records, running fingerprint checks and investigating complaints. Professionals without clean records face license revocation or suspension. The good news is that professionals have vested interests in their licenses. The board, department or commission that regulates you can’t just take away your license without giving you a chance for a hearing.

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Can I Lose My License Because Of A Conviction?

Maybe you caught a few DUI’s or engaged in an out-of-character shoplifting spree. Maybe you did something really stupid involving weapons or narcotics. Maybe you made a mistake and now have things under control. When it comes to professionals and criminal convictions in Utah, however, even if you’ve turned things around, fulfilled your probation terms, gotten your case dismissed, etc., past convictions can continue to haunt you. If you were convicted of a crime that your regulatory board or department considers substantially related to your fitness to do your job, it may be able to revoke or suspend your professional license. In fact, you might be reading this because you’ve already received an accusation notifying you of conviction-related discipline. If you don’t hold a license but have applied for one, you might have received a statement of issues.

Can I Have A Hearing On My Discipline Case?

The hearings are governed by the Administrative Agency Law and the General Rules of Administrative Practice and Procedure. Unlike civil litigation in the courts, there is very little discovery in the administrative law setting. The prosecution will generally supply copies of documents it intends to introduce at the hearing. It is important that the attorney knows which additional documents to request so that he or she can properly defend the case. In certain situations where the prosecutor will not turn over evidence, the attorney must request a prehearing conference with the hearing officer to obtain the documents. Additionally, the hearing examiner has the authority to issue subpoenas to various third parties to either attend the proceedings or produce relevant documents. It is important that the attorney be familiar with the administrative law process to properly defend the professional.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

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The post DOPL Hearings first appeared on Michael Anderson.

from Michael Anderson https://www.ascentlawfirm.com/dopl-hearings/

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stormlaw · 6 years ago

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New Post has been published on Law Offices of Norman Gregory Fernandez

New Post has been published on https://norman-law.com/property-damage-proportional-personal-injury-settlement-judgment/

The amount of property damage will affect the amount of a California personal injury settlement or judgment in most cases, but not all cases. By California Car Accident Attorney Norman Gregory Fernandez

In a California personal injury case, property damage is the destruction or damage to property, other than the human body.

Property damage usually occurs in vehicle accidents such as car, truck, motorcycle, RV, train, airplane, and other moving vehicles. Property damage rarely occurs in premises liability personal injury cases, and other types of personal injury cases, but it still could occur.

Damage to property in a California personal injury case may be accidental, or deliberately caused, and usually, property damage is settled separately in prelitigation, from bodily injury claims.

For instance, if you have a car accident, and you are not they had fault party, and you have Collision and comprehensive insurance on your car, your own car accident insurer may resolve the property damage claim weeks, or even years for a bodily injury claim is settled.

Your insurance company may then do a subrogation claim against the defendant (at fault parties) insurance company. Your insurance company may also obtain and refund the deductible you pay to your insurance company, as a result of them taking care of the property damage.

The party who is not at fault also has the option of going directly after the person who is at fault insurance, this is called a third-party claim.

For the most part, although property damage is usually settled separately from bodily injury claims, the nature and extent of property damage is usually directly proportional to a settlement offer and judgment you will obtain in your bodily injury portion of your California personal injury case.

For instance, if your car is crushed, and a total loss, which means it either cannot be repaired, or the repair costs exceed the fair market value of the vehicle, it is more likely that individuals within that type of vehicle would sustain more of a serious personal injury, that a person who is in a car that was just scratched or slightly damaged.

However, an expert car accident lawyer such as The Law Office of Norman Gregory Fernandez, 800-816-1529, has the expertise and knowledge to maximize damages even where there is a slight amount of property damage.

In the age of Google, there are a lot of people who think they can become a car accident experts simply by googling things, but I can assure you that the insurance company and their army of attorneys and adjusters, will minimize your payout every time if you do not have an attorney, or you do not have the right attorney.

I have used experts to show that even in a minor collision, a tremendous amount of pressure per square inch is applied to the back of the head when it hits the headrest in a slow speed rear end collision that might not result in much or any property damage.

So although, for the most part, insurance companies, and even jurors at trial may on its face equate the amount of property damage in a vehicle accident, to be expected bodily injury to injured parties, the fact is a good attorney can show that major injuries can occur even where there is minimal property damage.

The key is hiring the right car accident lawyer. The Law Office of Norman Gregory Fernandez is an expert car accident lawyer with almost 22 years’ experience, who handles the entire state of California. He knows how to get maximum damages in every type of vehicle case.

There are other issues related to property damage and any type of settlement offer or judgment, i.e., rental car, loss of use of the vehicle, add-ons and special features, the year make and model of the vehicle, the mileage on the vehicle, the geographic location of the vehicle, etc.

The insurance company will look at comparable vehicles that are similar to yours to determine what the fair market value of the vehicle is in your area.

As stated above, property damage from the case is usually settled well in advance of any bodily injury type of claim, but sometimes some of the issues related to property damage are not settled separately. In these instances, they are either made as a rollover to the bodily injury claim, or they are litigated in court.

Four inexperienced people trying to handle a complex personal injury case on their own, another problem that arises, is that insurance companies know that they have an inexperienced layperson on the other end of the phone when they are not talking to an attorney, and sometimes get injured individuals to settle their entire case including property damage and bodily injury, for either just the cost of getting the car repaired, or getting the car repaired, plus a few hundred dollars to pyre you off.

Even worse, third-party insurance companies may choose non-OEM aftermarket parts to repair your car, which hold to mentally diminish the value of the car.

Whatever you do, do not sign any release without consulting with an expert car accident lawyer like The Law Office of Norman Gregory Fernandez, 800-816-1529.

There are many more damages that you are entitled to besides just property damage, but like we have explained, for the most part property damage is directly proportional to how much you were receiving your bodily injury claim in most circumstances unless you have an expert car accident lawyer.

If you have been in a car accident anywhere in California including Northern California, central California, or Southern California, and you have been in a car accident, get medical attention immediately at an emergency room if you’re injured, and then have you or a family member contact us at The Law Office of Norman Gregory Fernandez at 800-816-1529.

If you are not at fault and we believe you have a good case, we will sign you up no money in your pocket unless we recover for you, and we will report the accident to your insurance company and the defendants insurance company and take care of all the legal aspects of your case. All you have to do is get better.

By California Car Accident Lawyer Norman Gregory Fernandez, Esq., May 24, 2019

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benrleeusa · 7 years ago

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[John K. Ross] Short Circuit: A roundup of recent federal court decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, the Iowa Supreme Court struck down part of the state's civil forfeiture law, ruling the Fifth Amendment privilege against self-incrimination trumps the state's requirement that individuals challenging forfeiture of their property disclose how they acquired it. Nick Sibilla has the story over at Forbes.com.

Newark, N.J. jail officer is sentenced to 25 years for raping pretrial detainee. Third Circuit: No need to reconsider his conviction. (Circuit split! Breaking with the Tenth Circuit, the panel holds that the jury must be clearly informed that, to convict of aggravated offense, defendant must have used force on victim; simply being physically larger than or having coercive authority over victimdoes not suffice.)

Fun fact: The first phrase inscribed on U.S. currency was "Mind Your Business." After the Civil War, "In God We Trust" started to appear on coins; Congress did not mandate it on all currency until 1955. Does the phrase violate the statutory rights of plaintiffs, who do not so trust (or otherwise object to the inscription)? The Sixth Circuit says no; they can pay by check or credit. Dissent: Lots of transactions are cash only. And as the gov't hasn't produced a compelling reason why the phrase is necessary to further its goals (communicating "the fundamental values on which our system of governmentis founded" to the world), this suit should not have been dismissed.

Army veteran suffering from PTSD tells VA therapist he thought about shooting Louisville, Ky. police officer (who cited him for minor traffic violation) but that he did not intend to do it. A VA staff member informs the police (without the therapist's say-so). The officer gets the veteran charged with making terroristic threats, neglects to mention therapist's belief that veteran was not a risk. The veteran spends 10 days in jail before charges dismissed. Sixth Circuit: The officer had a warrant, so the veteran can't sue for false arrest (though he might have been more successful had he raised different claims).

Michigan family court judge is barred by state law, constitution from retaining his position next term, as he will by then have become a septuagenarian. A violation of the Equal Protection Clause? The Sixth Circuit says he eloquently makes a forceful case: Many other prominent public offices have no age limit, and the gov't doesn't seriously try to explain why one is necessary here. But this is a rational basis case, so it needn't. Case dismissed.

Madison County, Tenn. officer: I shot 18-year-old assault suspect in the back, killing him, as he "gunned" his car directly at me. Eyewitnesses: The teen was driving slowly, steering away from officers (who were not in uniform, did not activate the emergency lights on their unmarked car, and did not identify themselves). Sixth Circuit: No qualified immunity.

After diet-drug class action settles for $200 million, lawyers collude with a since-disbarred state judge to defraud clients of the proceeds. Clients wise up, sue, and lawyer commences a "high-stakes shell game" to conceal his assets. So begins two decades of litigation. Sixth Circuit: The district court properly froze the lawyer's assets.

Does the motto "In God We Trust" inscribed on U.S. currency unconstitutionally endorse monotheistic religion? The Seventh Circuit says no, the motto (and other phrases like "one nation under God") merely give a nod to the nation's religious heritage.

U.S. Congressman (R-Ill.) resigns in 2015 after it emerges he sought to use public funds for (among other things) a chandelier, part of a Downton Abbey-themed redecoration of his office. (Pics here.) Later, he's charged with filing false reimbursement claims (among other things). Ex-Congressman: Congressmen can't be prosecuted for their legislative activities, per the Speech and Debate Clause of the Constitution. Seventh Circuit: Applying for reimbursements is not legislative activity.

Allegation: On daily basis, inmate with rotting teeth, pus-oozing gums begs for dental care. In the three months it takes Lincoln County, Ark. prison officials to bring him to a dentist, his face becomes disfigured, he pulls two of his own teeth, and he is unable to eat regular food. (A nurse provides ibuprofen.) Eighth Circuit: No qualified immunity.

Feds: Environmental nonprofit can't sue the feds for declining to turn over public records; it's not sufficiently clear that it was the nonprofit that requested the documents (which would confer Freedom of Information Act standing) as opposed to an individual activist associated with the nonprofit. Ninth Circuit: "FOIA forms should not be a 'gotcha' proposition requiring a lexicographer to discern who made the request." It is clear the nonprofit was the requester; the nonprofit can sue.

Allegation: After disturbance in Los Angeles County jail (in which inmates light fires, break stuff), officers maliciously and sadistically beat no-longer-resisting inmates, tasing them repeatedly in sensitive areas and breaking their bones while yelling "stop resisting." Video (mandated by county policy) inexplicably goes missing. Jury: Nineteen officers, including supervisors who condoned culture of excessive force, and the county are liable. Pay $950k damages. District court: Plus $5 mil attorneys' fees. Defendants: This suit shouldn't have been allowed to go; the inmates didn't take mandatory prelitigation step of filing complaint forms. Ninth Circuit: In retaliation for filing a complaint, guards put an inmate in yard with rival gang members who attacked him with razor blades. Affirmed.

An heir of the Egyptian composer who arranged the 1957 song, Khosara Khosara (you might recognize it), cannot sue American rappers who borrowed the tune, says the Ninth Circuit, taking a peek at Egyptian law. The heir had sold the rights to the song but claimed a continued and inalienable moral right under Egyptian law to object to "offensive" uses of the song.

Protesters erect tents on University of California–Berkeley campus, form human chain to prevent police from taking the tents down. After bullhorn warnings, police use batons to disperse protesters. Excessive force? Ninth Circuit: None of the plaintiffs got really hurt, so no. Concurrence: The protest was entirely peaceful (apart from locking arms), and there was no immediate need to remove the tents. So it was excessive force; but the officers are entitled to qualified immunity because there's no precedent that puts police on notice.

Man accepts Facebook friend request from undercover detective, posts incriminating posts. A Fourth Amendment violation? The Delaware Supreme Court says no.

Police officer "door checks" motorcyclist, opening door of his patrol car just as the motorcyclist was passing; the collision knocks the motorcyclist off a bridge. He falls 30 feet, sustains serious injuries. Yikes! The motorcyclist was only suspected of speeding and says he didn't know he was being pursued. The officer ignored instruction to cease pursuit, violated several department policies regarding pursuits. Washington state appeals court: No qualified immunity.

Allegation: Twitter user @jew_goldstein, a Salisbury, Md. man, tweets GIF to journalist, who is widely known to suffer from epilepsy, with message "YOU DESERVE A SEIZURE FOR YOUR POSTS." The journalist sees the GIF, a rapidly flashing strobe image, and has a serious seizure. District court: The journalist's civil claims for assault, battery, and intentional infliction of emotional distress can proceed. (A criminal case pends as well.)

This week, IJ sued U.S. Customs and Border Protection for seizing over $58k from a Cleveland retiree. It's been over seven months since agents took the cash from Rustem Kazazi, and he hasn't been charged with a crime. Indeed, his family earned and planned to spend the money legally and have documentation to prove it—if CBP would actually give him a day in court. Read more at The Washington Post. And in related news, CBP has returned over $40k seized from a Texas nurse—weeks after IJ filed suit on her behalf. The suit is not moot, however; read more here.

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