Clear and Convincing Evidence: A High Standard to Meet

As several of us watch the progression of a case involving alleged misconduct by a former EMS employee as it hurtles toward a DOAH administrative hearing---some interesting facts must be noted.

First of all, this hearing before a hearing officer is an administrative, civil procedure.  Some folks on some chat sites don't know this, they want this former employee's head on a plate.  They think he is up on criminal charges!  

But no, this is a civil, administrative matter.  It is serious, it is important, but it is a civil matter.  

And the question for the hearing officer will be fairly basic.  Is there clear and convincing evidence that this individual did what has been alleged?

And because this individual holds a state certification, he will have to answer to these allegations in one of the following four ways:

  

--Formal hearing before the Division of Administrative Hearings (contest the charges)

--Informal hearing before the board (no dispute)

--hearing waived before board (no dispute)

--settlement by licensee to board for approval

(See the process flow chart, below.)

In perusing the settled case files and reading a couple of interesting recommended orders like this one----one thing becomes exceptionally clear very quickly to even the most casual observer: proving something to the standard of clear and convincing isn't a slam dunk.   Especially if there are facts in dispute, if it is a "he said, she said" issue....And when you are talking about someone's livlihood---their state license---it has to be a high bar to meet to prove even the most sensational allegations.

In speaking with a lawyer I know and trust about the difficulty in proving something to this standard--when issues are contested and with dualing expert testimony submitted, the reply was short and simple  "Jeff, it will be difficult if not impossible to get to clear and convincing with dualing medical experts on complex subjects of contention."  Another attorney I asked put it a bit more bluntly  "It would be an expert vs. expert smack down.  That [clear and convincing] is a very high standard to meet."

So while anyone can throw a bunch of charges against the wall to see what sticks----and while some of these allegations can be framed in such a way to make someone look terrible----at the end of the day and at the end of the process, even these tremendously scary sounding allegations have to be proved.  And the burden of proof in this instance must be clear and convincing.

So it will be a Doctor vs. Doctor game of rock em' sock em' robots.  The hearing officer will read one doctor's "charge sheet" and see another doctor refute every single allegation in his written counter.  Each and every one.  So with two well qualified doctors completely disagreeing--how the heck will the hearing officer ever meet the "clear and convincing" standard to find this employee violated the state licensing regulations he is alleged to have violated? 

But then the really interesting timelines will come in that make getting to clear and convincing even more difficult.  The timing of the harrassment complaint is devastating to the doctor making allegations about the employee.  This is because these "allegations" from the doctor against an employee were made AFTER the harrassment complaint was made by the employee against the doctor.  And that timeline will be easily illustrated and backed with proof. 

But then the most obvious of obvious, million dollar questions will most assuredly be asked by the DOAH hearing officer once he gets through with the dualing doctor testimony:  

"If you allege this particular employee was so inept, dangerous, and reckless in his conduct, why did you not counsel him, discipline him, or restrict his privileges to address these alleged shortcomings until AFTER you found out he filed a harrassment complaint against you?"  "Furthermore, why did you save up and document all of these purported incidents where this medic, according to you, acted with recklessness jeopardizing patient safety--but during this same timeframe where you gathered these allegations you never once recommended he be disciplined nor conseled--and you NEVER restricted his privileges or reported this to DOH?"

Throw in the emails and initial HR documents that point to retaliation, or at a minimum the appearance of retaliation, on the part of the doctor making these allegations against the employee-----and there appears to be no pathway to getting the allegations against this medic sustained to the level of "clear and convincing."   

And by the time this thing even goes to DOAH, there will likely be a huge, 6-figure settlement paid to this employee by the county that will be out there in the domain of public records that can and will be included in the hearing--complete with transcripts.  And these will only help this employee.  

I predict he clears his name and defeats these allegations and charges, because clear and convincing is a high standard to meet.