The recent criminal prosecution of nurse RaDonda Vaught in the state of Tennessee for a medication error has renewed questions about what action can be taken against a regulated professional when an unexpected outcome occurs. Now is a great time to review the three different courses of action parties can take and the types of relief each course offers.
1. Administrative complaint
The first and most common action is an administrative complaint against a professional license. In the state of South Carolina, anyone can file an informal complaint against a professional licensed by the Professional and Professional Licensing Commissions administered by the Department of Labor, Licensing and Regulation. LLR is the firm’s apex agency that administers the 42 councils responsible for regulating nearly every profession in our state except for lawyers, teachers, and mortgage loan officers, which is quite different from other jurisdictions. Due to differences between the laws of South Carolina and other states in which professionals may also be licensed, it is easy for professionals to violate an administrative requirement.
LLR’s mission is to protect the general public, rather than provide relief to any particular party. LLR, on behalf of the State, is the interested party in all cases where a formal complaint is opened. LLR bears the burden of proving any allegation made against a licensee by the preponderance of the evidence.
LLR investigators are not law enforcement officers and cannot arrest a licensed professional accused of violating applicable practice law. Although LLR investigators can issue subpoenas and interview witnesses during an investigation, they do not have the authority to issue warrants to seize documents or enter businesses without authorization, except in a few circumstances. limited. Only a few councils have the authority to inspect a licensed business, such as barbers, cosmetology, dentistry, and pharmacy. Statements provided to LLR investigators may be provided to law enforcement if they indicate a crime has been committed, and LLR often works with other regulatory entities.
If a licensee is found to have violated a law of practice, a civil penalty may be imposed, in addition to restrictions on the individual’s ability to practice their profession, as well as educational requirements complementary or remedial. All fines collected in an LLR case are remitted to the State of South Carolina, rather than the person who filed the complaint.
2. Civil litigation
A party alleging bodily injury or property damage against a licensed professional may also seek financial or other relief through civil litigation. In these cases, the person who initiates the complaint is the interested party and bears the burden of proof. If the claimant prevails, it may be entitled to recover monetary compensation, specific performance, or other equitable relief, depending on the nature of the claim.
Lawyers engaged in civil litigation use the discovery process to develop their cases. Some discovery tools include written interrogations, applications for admission, subpoenas and depositions. Although attorneys may coordinate site inspections during the discovery process, attorneys do not have the authority to enter an opposing party’s property without permission or a court order for an inspection during litigation.
3. Criminal prosecution
Finally, in some cases, the conduct of a licensed professional may be reported to law enforcement for investigation and, if appropriate, criminal prosecution. As with administrative action, the author of a criminal prosecution is the State, which replaces the injured party for the purposes of the prosecution. The state must prove a criminal charge beyond a reasonable doubt. The state has power not available to parties in administrative and civil actions, including the ability to arrest individuals, issue search warrants and seize property. The penalty in a criminal case can range from a fine and probation, to restitution, to a long period of detention, depending on the charges. Entering a guilty plea or finding of guilt for certain offenses automatically violates several professional practice statutes and triggers the requirement to report the conviction to the licensing board.