Top 5 Tips For Avoiding Professional License Complaints

complaintYou can’t please everyone. No matter your profession or career, if you have clients, customers, or patients, one of them at some point is going to be unhappy with you and your services. Whether their displeasure is justified or not, whether or not you’ve done everything right and are without fault for anything, whether they are straight-up making up facts and allegations, that disgruntled person can become a major thorn in your side.

If they file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR), you will have to deal with it. At minimum, it will make you angry, frustrated, or indignant and you will need to spend your valuable time responding to the claims against you. If you fail to address the complaint effectively or if the Department finds merit in the allegations, the potential damage to your reputation and risk to your livelihood become exponentially greater.

In a perfect world, your professionalism, ethics, and competence would prevent any license complaints against you. But as we see every day, our world is anything but perfect. That said, there are things you can do to reduce the likelihood of complaints and position yourself for a positive outcome if a complaint is filed.

For doctors, accountants, appraisers, hairstylists, or any of the scores of professions regulated by IDFPR, here are five tips for avoiding professional license complaints:

  1. Know your professional obligations. Specific laws, rules, and regulations govern your profession. Baseline standards of care, continuing education requirements, and other obligations must be complied with for you to stay on the right side of regulators and These requirements are numerous and can change without notice. Make sure that you keep up with your obligations and audit yourself every year to confirm that you are in compliance.
  2. Educate your staff. If you employ others in your practice or profession, you are responsible for everything they do in the course of their employment. Their misconduct, malfeasance, or negligence can directly threaten your license. You need to supervise, train, and educate your staff to ensure that they understand their professional obligations and are following all applicable rules. Put in place policies and protocols that can minimize deviations and quickly correct them if they occur.
  3. To sue or not to sue? You have every right to get paid for services you provide, and when a client or customer skips out on a bill, you have every right to pursue them in a collection lawsuit. While some folks may fail to pay because they are simply avoiding their obligations, others may claim that the services you provided were substandard, improper, or not what you promised. If that’s the case, you’ll want to try to resolve these disputes before filing suit. Even if you can’t do so, you’ll be well-positioned if they respond with a license complaint, as sued clients often do.
  4. Document everything. Whether in a civil lawsuit or an IDFPR disciplinary proceeding, the more documentation and evidence you have to support your position, the better your chances of a positive outcome. Be sure to document any problems that occur and the steps that you took to correct them. If any staff was involved, have them document their version of events as well.
  5. Communicate. What we have here with so many professional license complaints is a failure to communicate. Inadequate client communication can lead to misunderstandings or feelings of neglect and insufficient care, increasing client dissatisfaction and the likelihood of claims. Be accessible and responsive, and make sure your staff is too.

As noted, you will likely face a professional license complaint at some point in your career, and when you do so, the most important tip is to contact an experienced Chicago professional license defense attorney as soon as possible. Seasoned and knowledgeable counsel can be the key to resolving IDFPR matters early and cost-effectively so you can focus on your career instead of complaints.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you or you learn that you are under investigation is the moment that you should contact me. Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Do Liability and Professional License Troubles Mean Never Being Able to Say You’re Sorry?

sorryWith the possible exception of “free donuts,” there are no two words in the English language more powerful and more impactful than “I’m sorry.” Owning up to a mistake and sincerely apologizing to the person impacted by your error can resolve disputes and mend fences. It can increase understanding and trust and reset a damaged relationship.

For physicians and other professionals, a sincere mea culpa for a mistake and an expression of sympathy for a less-than-ideal outcome can also reduce the likelihood of lawsuits and professional license complaints. But will that apology come back and haunt you if your patient or client decides that it’s not good enough? Will “I’m sorry” translate into “I’m liable” before a jury or the Illinois Department of Financial and Professional Regulation (IDFPR)?

How Apologies Can Benefit All Parties

So many professional license complaints and lawsuits, whether against doctors, accountants, lawyers, brokers, and other professionals, arise not because of actual misconduct or mistake but rather due to a failure of communication. Professionals may be loathe to admit a mistake and apologize for the error for reasons of ego, but more often it is because they are worried that an apology will be seen as an admission that they did something wrong and that admission will be used against them.

In the practice of medicine in particular, this silence and defensiveness can increase distrust and frustration and come across as cold, unfeeling, and unsympathetic to the patient’s plight, especially when no mistake or allegation has been made. If a patient passes away, medical error or not, a doctor who delivers the news without an expression of sympathy for the loss won’t look cautious, he or she will look like a heartless jerk.  In turn, those feelings increase the likelihood that an aggrieved patient will take action against the doctor or other professional who they believe did them wrong.

Study after study has shown that honest, open, and apologetic communication after an alleged error or bad result can significantly decrease claims for malpractice and related consequences. For example, a study published in the Journal of Patient Safety and Risk Management found that hospital staff and doctors willing to discuss, apologize for and resolve adverse medical events through a “collaborative communication resolution program” experienced a significant reduction in the filing of legal claims, defense costs, liability costs and time required to close cases.

“Apology Laws”

For these reasons, and because of the emotional and psychological benefits to patients that come with apologies, dozens of states have enacted so-called “apology laws” specifically to allow physicians to apologize, express regret or offer remediation without worrying that such statements will be admissible in malpractice or other actions.

Illinois, unfortunately, is one of the minority of states which does not have a clear apology statute for physicians. Illinois law does, however, protect healthcare providers who offer to pay for or perform services or procedures in an effort to fix an alleged mistake by declaring that testimony, writings, records, reports or information regarding such offers “shall not be admissible in evidence as an admission of any liability in any action of any kind in any court or before any commission, administrative agency, or other tribunal in this State.”

These laws not only help patients and doctors better resolve allegations of error, but they also help doctors comport with their ethical responsibilities. The American Medical Association’s Code of Medical Ethics, for example, says that:

“It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. … Concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.”

What to say to an aggrieved patient remains a matter of competing legal and ethical interests. The desire to be of comfort and help, to fix what’s wrong, is countered by concerns of self-preservation and risk management. Physicians and other professionals thus need to tread cautiously and with the advice of counsel or the guidance of their organizations before saying those two important words lest they compound their regret even further.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Dogging It: Voluntarily Tanking Your Income Won’t Get You Out of Your Child Support Obligations

pocketsDivorce can bring out the worst in people. Underhanded actions and tricks designed to hurt the other spouse and gain an advantage in the proceedings are all too common. In many cases, a spouse will engage in devious tactics to try to reduce the amounts he or she must pay for child support.

Since support obligations are in part determined based on the assets and income of the parent from whom payments are sought, a less-than-honest spouse may try to make it appear that they have significantly less money than they actually do. This can involve concealing or transferring assets. Sometimes, however, a spouse will also intentionally reduce their income through “voluntary underemployment” or taking a job that pays less than they previously were earning, solely to stick it to the other parent or deny them the child support they deserve.

Luckily, Illinois law provides a way for parents who are intentionally tanking their income to be held to account.

“Potential Income” Used to Determine Child Support Obligations

In Illinois, the basic formula for arriving at a child support amount (subject to variations based on specific circumstances) involves:

  • calculating each parent’s net income, then
  • combining net incomes to determine Total Family Income, then
  • using the Illinois Child Support Estimator to determine the Basic Child Support Obligation, then
  • allocating the Basic Child Support Obligation proportionally based on net incomes.

Initial support obligations are calculated as part of the divorce proceedings but can later be modified at the request of one of the parents if there has been a substantial change in circumstances, such as an increase or decrease in the amount of one of the parent’s incomes. But if it can be shown that a reduction in a parent’s net income – such as quitting a job or taking a much lower paying job – was voluntary and done in bad faith, an Illinois court can base its support calculations on the parent’s “potential income” rather than their actual, reduced income.

Specifically, Section 505(a)(3)(F)(II)(3.2) of the Illinois Marriage and Dissolution of Marriage Act provides that If a parent is “voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” A court will calculate that income by determining the parent’s employment potential and probable earnings level based on:

  • the parent’s work history
  • the parent’s occupational qualifications,
  • prevailing job opportunities
  • the ownership by a parent of a substantial non-income producing asset, and
  • earnings levels in the community.

If there is insufficient work history to determine employment potential and probable earnings level, there is a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.

Every one of us has our own unique career journey which can include ups and downs, setbacks and advancements. Whether a parent’s career choices will be held against them in terms of their child support obligations will depend on their unique facts and circumstances and whether or not those choices were made in good faith or were made solely to skirt their obligations under the law.

Louis R. Fine – Chicago Child Support Attorney

If you have questions about child support, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. When we meet, we can go through all of your questions, and I will be there to listen to you as well as advise you. I look forward to assisting you

“Potential Income” Used to Determine Child Support Obligations

In Illinois, the basic formula for arriving at a child support amount (subject to variations based on specific circumstances) involves:

  • calculating each parent’s net income, then
  • combining net incomes to determine Total Family Income, then
  • using the Illinois Child Support Estimator to determine the Basic Child Support Obligation, then
  • allocating the Basic Child Support Obligation proportionally based on net incomes.

Initial support obligations are calculated as part of the divorce proceedings but can later be modified at the request of one of the parents if there has been a substantial change in circumstances, such as an increase or decrease in the amount of one of the parent’s incomes. But if it can be shown that a reduction in a parent’s net income – such as quitting a job or taking a much lower paying job – was voluntary and done in bad faith, an Illinois court can base its support calculations on the parent’s “potential income” rather than their actual, reduced income.

Specifically, Section 505(a)(3)(F)(II)(3.2) of the Illinois Marriage and Dissolution of Marriage Act provides that If a parent is “voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” A court will calculate that income by determining the parent’s employment potential and probable earnings level based on:

  • the parent’s work history
  • the parent’s occupational qualifications,
  • prevailing job opportunities
  • the ownership by a parent of a substantial non-income producing asset, and
  • earnings levels in the community.

If there is insufficient work history to determine employment potential and probable earnings level, there is a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.

Every one of us has our own unique career journey which can include ups and downs, setbacks and advancements. Whether a parent’s career choices will be held against them in terms of their child support obligations will depend on their unique facts and circumstances and whether or not those choices were made in good faith or were made solely to skirt their obligations under the law.

Louis R. Fine – Chicago Child Support Attorney

If you have questions about child support, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. When we meet, we can go through all of your questions, and I will be there to listen to you as well as advise you. I look forward to assisting you

More Changes Coming to How Illinois Spousal Maintenance Breaks Down After a Marriage Does

maintOnce again, changes to Illinois law have and will alter how spousal maintenance awards are determined in divorce proceedings. Amendments to Sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act, some of which became effective in 2018 and others which will be effective on January 1, 2019, come only three short years after legislators for the first time established specific formulas for calculating the amount and duration of spousal maintenance payments.

These changes tweak the calculation guidelines that were set in the last round of amendments. The 2018 changes altered the threshold for applying the guidelines and the percentages used in determining how long a spouse will be required to make maintenance payments. The 2019 changes as to how maintenance amounts will be calculated were a direct reaction to changes in federal tax law that eliminated the tax deduction for alimony payments.

Increase in Gross Income Level for Application of Guidelines

The guidelines established in 2015 only applied when the combined gross income of the parties was less than $250,000 and no multiple family situation existed. As of 2018, this formula now applies to couples with a combined gross income of less than $500,000, significantly increasing the number of divorces which will involve its use when maintenance is deemed appropriate.

Amount of Maintenance Payments

For divorces finalized on or before December 31, 2018, all amounts paid for spousal maintenance or alimony reduce the payor’s taxable income by the same sum. For most folks paying maintenance, this deduction represents a significant tax savings that can ease the burden of supporting an ex.

But the GOP tax plan passed a year ago eliminated that tax deduction for divorces finalized after the end of this year. Maintenance will no longer be deductible for the spouse who pays maintenance while the recipient can no longer include maintenance payments as taxable income. It is important to note that the deduction will still apply going forward for divorces entered this year or earlier.

In response to this significant change, Illinois modified the formula used to calculate maintenance awards. The current statutory formula provides that a maintenance award should equal 30 percent of the payor’s gross income, minus 20 percent of the payee’s gross income.

Example:

  • Husband’s annual gross income = $100,000 (30% = $30,000)
  • Wife’s annual gross income = $45,000 (20% = $9,000)
  • $30,000 – $9,000 = $21,000 in annual spousal maintenance to wife.

The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is more than 40% of the combined gross income of the parties.

For divorces finalized in 2019 or later, those guidelines are now as follows:

  • The award should be 33.3% of the payor’s net (not gross) income, minus 25% of the recipient’s net (not gross) income.
  • There will still be a 40% cap, but it will now be calculated using the combined net income of the parties rather than gross income.

Duration of Maintenance Payments

Under both the old and new laws, how long a spouse is required to pay maintenance is based on the length of the marriage. Before 2018, judges were to use the following formula in determining how long payments must continue:

  • Married 0 – 5 years = 20% of the duration of the marriage
  • Married 5 – 10 years = 40% of the duration of the marriage
  • Married 10 – 15 years = 60% of the duration of the marriage
  • Married 15 – 20 years = 80% of the duration of the marriage
  • 20 or more years = court has the discretion to order either permanent maintenance or maintenance equal to the length of the marriage.

Under this formula, for example, a 5-year marriage would result in a 1-year maintenance obligation, while a 10-year marriage would result in 4 years of maintenance payments.

The new formulas are broken down in more detail such that the percentages that apply to an 11-year marriage, for example, are now different than they are for a 14-year one. Specifically, the duration of maintenance obligations are now as follows:

  • less than 5 years (.20)
  • 5 years or more but less than 6 years (.24)
  • 6 years or more but less than 7 years (.28)
  • 7 years or more but less than 8 years (.32)
  • 8 years or more but less than 9 years (.36)
  • 9 years or more but less than 10 years (.40)
  • 10 years or more but less than 11 years (.44)
  • 11 years or more but less than 12 years (.48)
  • 12 years or more but less than 13 years (.52)
  • 13 years or more but less than 14 years (.56)
  • 14 years or more but less than 15 years (.60)
  • 15 years or more but less than 16 years (.64)
  • 16 years or more but less than 17 years (.68)
  • 17 years or more but less than 18 years (.72)
  • 18 years or more but less than 19 years (.76)
  • 19 years or more but less than 20 years (.80)

For a marriage of 20 or more years, a judge has the discretion to order maintenance for a period equal to the length of the marriage or for an indefinite term.

Judge May Deviate From Guidelines But Must Explain Why

While a judge is not required to follow the new guidelines, if they deviate from them they must explicitly state in their findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.

If you have questions or concerns regarding these changes or spousal maintenance generally, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

It Could Happen to You: Understanding IDFPR Sanctions

sanctionsIn recent posts, we’ve discussed the investigations and disciplinary proceedings which the Illinois Department of Financial and Professional Regulation (IDFPR) conducts when a professional’s license comes under its scrutiny.

At various points in these processes, complaints may be dismissed or matters resolved without the imposition of any sanctions or other actions which could damage the licensee’s career or reputation. But in many cases, the IDFPR may conclude that disciplinary action is warranted. What that action may be, what it means, and how it may impact your life and livelihood can vary wildly. If you receive an IDFPR complaint or are facing administrative proceedings, it is crucial that you understand the potential consequences the IDFPR can impose if they find that your conduct merits it.

The following are some of the possible sanctions the IDFPR can levy on professional licensees:

  • Reprimand. While a reprimand will not limit your ability to work or practice, it may require monitoring and is an official public record of discipline.
  • Probation. If you are placed on probation, you will be able to continue working or practicing subject to specific conditions and limitations established by the Department. As with probation in the criminal justice system, a violation of any of the imposed terms will create further problems potentially involving further discipline. The probation term could be for a set period which will automatically expire providing all conditions were complied with or it could be for an indefinite time, requiring that the licensee petition the board to terminate the probation.
  • Suspension. If your license is suspended, you are prohibited from working in your profession during the suspension term. As with probation, the duration of suspension can be set or indefinite.
  • Summary or Temporary Suspension. If the Department determines that a licensee’s continuation in practice poses an imminent danger to the public, it can take immediate action by summarily or temporarily suspending a license. The license remains suspended pending a hearing on the case
  • Revocation. If the Department revokes your license, you cannot work or practice in your chosen profession until further notice. If no term is stated, you must wait a minimum of three years before you can file a Petition for Restoration.
  • Refusal to Renew. Licensees who are refused renewal are ineligible to renew their license and are prohibited from practice after the expiration of the date of their license, though they may file a Petition for Restoration.
  • Fines. A monetary penalty can be levied alone or in conjunction with any of the foregoing sanctions.

If the Department is seeking any of these sanctions against you or offers to resolve your matter through a consent order in which you agree to the imposition of a specific penalty, it is imperative that you consult with an experienced Chicago professional license defense attorney if you haven’t done so already. You need to fully understand the implications of any possible sanctions so you can make an informed decision about how to proceed. Your future is at stake; it is no time to go it alone.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Your Career in the Crosshairs: The Perils of IDFPR Disciplinary Proceedings

disciplineAllegations of professional misconduct made to the Illinois Department of Financial and Professional Regulation (IDFPR) are a dime a dozen. Any disgruntled client, customer, or patient can claim that you wronged, harmed, or otherwise treated them in an unprofessional manner worthy of investigation and punishment.

But these claims, as well as allegations of wrongdoing submitted to IDFPR by other licensees or law enforcement agencies, remain mere allegations until the IDFPR’s Investigations Unit determines that there is sufficient factual evidence to support the claim against you. If they reach that conclusion and submit the matter to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings, those mere allegations against you explode into existential threats to your license and career. Understanding this threat, and retaining an experienced IDFPR defense attorney to defend you, are critical if you wish to continue making a living in your chosen profession.

Pre-Hearing Steps

We previously wrote about the IDFPR’s process of evaluating and investigating complaints prior to the start of an administrative proceeding which can conclude with disciplinary action, including the suspension or revocation of your professional license. Here’s what happens next:

  • Formal complaint. As opposed to a complaint submitted to the IDFPR about you, this is a complaint submitted to you by the IDFPR. It sets forth the factual and legal basis for seeking disciplinary action against you and advises you when you and your attorney must appear and file an answer to the charges. Failing to respond or appear can result in a default judgment which can, in turn, result in the loss of your license without you having an opportunity to defend yourself.
  • Informal conference. After you respond to the charges in the complaint, there is usually a meeting between yourself, your lawyer, and Department attorneys to informally negotiate and discuss your case to determine if a resolution can be reached before a formal hearing.
  • Preliminary hearing. If the parties cannot reach an early negotiated resolution, a preliminary hearing will be held at which time a date will be set for rulings by the Administrative Law Judge on any preliminary motions, such as those relating to discovery, evidence, and other pre-trial issues.

Unfair Discovery Process

During this time, both sides will be busy preparing their case for a formal hearing. This includes gathering the evidence and testimony that will support their respective positions, much as parties do in civil lawsuits. But unlike civil suits, where the judge gets to determine the parameters of discovery, the extent of allowable discovery in IDFPR proceedings is determined by the very people who are prosecuting the case.

Once the Department provides names of witnesses, including the name of any individual whose complaint may be at the heart of the proceedings, a respondent cannot take their depositions unless the Department’s attorney agrees – which rarely, if ever, happens. If the Department nixes a deposition request, that means the respondent will not be able to confront that witness, learn what his testimony will be, or attack the veracity of his testimony until the actual hearing. That is manifestly unfair and leaves a respondent and their attorney fighting with one arm tied behind their back.

The Formal Hearing

Ultimately, in lieu of a settlement, a formal hearing will be held during which each party makes opening and closing statements, the Department presents a case in chief, and you and your attorney will present your defense, much like in a trial.

The individual presiding over your case, the hearing officer, is usually an attorney charged with presiding over the proceedings fairly and objectively without favoritism or bias. The problem is the hearing officers are not independent. They are employed and paid by the IDFPR, just as the prosecuting attorneys are. This can make an already perilous process even more so.

Once the formal hearing concludes, the hearing officer or administrative law judge will present his or her findings, conclusions, and recommendations to the Director of Professional Regulation, who will determine the nature and extent of sanctions against you, or decide that no sanctions are warranted at all, if that is supported by the report they receive after the hearing. You will receive a copy of the report as well and have 20 days from the date the notice is mailed to file a motion for rehearing. Once the Director issues his order as to disciplinary action, you have 35 to file an appeal in circuit court.

If you receive a formal IDFPR complaint, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

The Road From IDFPR Complaint to IDFPR Disciplinary Action

complaintAs a lawyer, clients often will ask me whether they can sue this person or that company for a perceived wrong. My answer is always the same: anyone can sue anybody for anything. Of course, that doesn’t mean that they actually have a viable case or that filing a lawsuit is a smart move. It’s just that anyone who has the money for the filing and service fees can walk into a courthouse and file a lawsuit.

Similarly, anyone who feels that a licensed Illinois professional has acted improperly or done them wrong in some way can file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR). But just because IDFPR receives a patient, client or customer complaint does not automatically translate into the institution of disciplinary proceedings. There are multiple stops on the road from complaint to action, any one of which can be the end of the matter.

Initial Evaluation

No matter whether an allegation of misconduct comes from a client, competitor, media reports, or other governmental bodies, IDFPR does not institute disciplinary proceedings without first conducting an investigation to determine whether the allegations appear to have merit.

When received by IDFPR, a client/patient/customer complaint will be forwarded to the Department’s Complaint Intake Unit. The claim is then sent to the investigative unit in charge of evaluating allegations for the specific profession at issue. Each licensed profession has its own investigative unit which is supposed to be staffed with individuals who have the knowledge and experience to evaluate the factual allegations in the complaint. They are also supposed to understand the applicable laws, regulations, and standards which determine whether a particular act or omission, if true, would be the basis for disciplinary action.

The lead worker on the case will review the information set forth in the complaint and decide whether to initiate an investigation or close the case. A case may be closed at this early juncture if the substance of the claim, even if true, would not support any disciplinary action. For example, if a patient filed an IDFPR complaint because a doctor did not shake their hand when walking not the exam room, that complaint will wind up in the IDFPR dustbin in short order.

Initial Investigation

However, if the lead worker decides that the allegations merit further inquiry, an IDFPR investigator will be assigned to look into the matter. The investigator can take any number of steps as part of their analysis, including:

  • Reviewing the complaint along with any documents or evidence submitted by the complainant
  • Pulling IDFPR licensure records and records of past investigations and disciplinary actions concerning the licensee.
  • Interviewing the complainant
  • Interviewing any known or potential witnesses
  • Interviewing the licensee who is the subject of the investigation
  • Issuing subpoenas for documents and other evidence

Referral for Prosecution

At the conclusion of their investigation, the assigned investigators will prepare and submit reports describing the steps they took, the evidence and testimony they gathered, and the conclusions they have reached. Upon receipt of the reports, the lead worker will review and decide whether the case should be closed or forwarded to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings or other further action.

For some professions, such as physicians and dentists, IDFPR has case coordinators who are licensed members of those professions. These subject matter experts will review a case and all investigatory reports and decide whether a matter will proceed to the next level.

If you receive notice that an IDFPR complaint has been filed against you, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible. You don’t want to wait until that complaint metastasizes into a formal prosecution before taking steps to protect yourself and your career.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

It Doesn’t Take a Scalpel to Pierce Your Medical Practice’s “Corporate Veil”

pierceAs “Captain Obvious” would no doubt note: doctors get sued. Medical malpractice lawsuits are filed every day in which a patient alleges that a physician failed to adhere to the appropriate standard of care. But doctors get sued for other reasons and by folks other than those they treat. Medicine is a business as well as a profession, and like other businessmen and women, doctors can get sued by people or entities they do business with, including the government.

That is one of many reasons physicians form medical corporations, limited liability companies, or professional service corporations. These specialized entities can shield the personal assets of physicians who act as officers, directors, or shareholders when lawsuits by creditors or other liabilities confront their business. But that protection is not absolute, and doctors can find their personal assets in the crosshairs of a determined litigant if they fail to adhere to the requisite “standard of care” in managing their entity.

“Piercing the Corporate Veil”

“Piercing the corporate veil” is the term used to describe imposing personal liability on a company’s owner(s) for a corporate obligation. Plaintiffs often attempt to pierce the corporate veil when the company they are suing is insolvent or would be otherwise unable or unlikely to pay any judgment entered against it.

Veil-piercing allows a court to “impose liability on an individual or entity that uses a corporation merely as an instrumentality to conduct that individual’s or entity’s business.” Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491, 500 (2005)

Illinois courts use a two-prong test to determine whether to pierce the corporate veil:

  1. there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and
  2. circumstances must exist such that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences.”

In determining whether the “unity of interest and ownership” prong of the test is met for a medical business entity, a court will consider many factors, including:

  • inadequate capitalization;
  • insolvency;
  • failure to follow corporate formalities
  • commingling of funds;
  • diversion of assets from the entity by or to a member to the detriment of creditors;
  • failure to maintain arm’s-length relationships among related entities; and
  • whether, in fact, the entity is a mere facade for the operation of the dominant members.

Medical Entities Do Not Shield Doctors from Malpractice Liability

While a properly organized and managed entity can protect a doctor’s personal assets from creditors and business-related claims, it affords no such protection against medical malpractice claims. The Illinois Medical Corporation Act specifically provides that it “does not alter any law applicable to the relationship between a physician furnishing medical service and a person receiving such service, including liability arising out of such service.”

Similarly, the Illinois Professional Service Corporation Act states that physician officers, shareholders, or directors “remain personally and fully liable and accountable for any negligent or wrongful acts or misconduct committed by him, or by any ancillary personnel or person under his direct supervision and control, while rendering professional services on behalf of the corporation to the person for whom such professional services were being rendered.”

If you are a physician who has an interest in an Illinois medical practice, it is critical that you understand that the protections afforded to your assets aren’t set in stone just because you formed a corporate entity. I work closely with physicians and their entities to implement programs and protocols designed to minimize risks, including the risk of personal liability for their business obligations. If you need assistance with your medical practice’s legal obligations, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Medical Corporations are Licensees Too, My Friend

corpEven though individual licensed physicians, not a corporate entity, are the ones doing the diagnosing, treating, and healing, the entity still must be licensed by the IDFPR. There are three main types of medical entities that Illinois physicians can form: a medical corporation, a limited liability company, and a professional corporation. In a medical corporation or professional corporation that provides medical services, only licensed physicians may be shareholders, directors and officers.

In Illinois, physicians may also practice medicine through a limited liability company so long as the managers and each member are licensed to practice medicine under the Illinois Medical Practice Act or a member or manager is a registered Illinois professional corporation, medical corporation or appropriately structured and licensed limited liability company.

Medical Corporations

Under the Illinois Medical Corporation Act, no corporation shall open, operate or maintain an establishment involving the delivery of medical services in the state without a license issued by IDFPR. All medical corporation licenses expire on December 31 of each year regardless of the date on which IDFPR issued the license and must be renewed every year.

It is important to note that IDFPR can revoke or suspend the corporation’s license for numerous reasons, including:

  • the revocation or suspension of the license to practice medicine of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • unethical professional conduct on the part of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • the death of the last remaining shareholder; or
  • upon finding that the holder of a certificate has failed to comply with the provisions of this Act or the regulations prescribed by the Department.

Medical corporation owners therefore need to be cognizant about how any individual physician’s disciplinary issues may impact the corporation’s license status.

Limited Liability Companies

Licensed Illinois physicians can also form a limited liability corporation (LLC) to provide professional services, and the LLC must be licensed by IDFPR  just like a medical corporation.

While the owners of a medical corporation can be licensed for different medical professions, all members and managers of LLCs providing any of the following professional services must be licensed for the same profession:

  • Clinical psychology
  • Dentistry
  • Marriage and family therapy
  • Medicine

Professional Service Corporations

Licensed Illinois professionals who perform the same or “related professional services” may form a professional service corporation. “Related professional services” include a combination of personal services by physicians, podiatric physicians, dentists, and optometrists licensed in Illinois. Only licensed individuals engaged in the same or related professions may be shareholders, directors, or officers in the corporation. All Illinois professional service corporations must be licensed by IDFPR.

Entities which lose their license cannot continue to legal offer medical services. If they continue to do so, it could cause problems for the individual physician/owners. Not only may they be subject to disciplinary action, but the failure to follow the law could theoretically contribute to a physician’s personal exposure for the entity’s obligations or liabilities if a plaintiff attempts to “pierce the corporate veil.”

In our next post, we will discuss how issues other than licensing can cause headaches for medical entity owners who fail to comply with the formalities and requirements that apply to the operation of their entities.

Louis Fine: Chicago Medical License Defense Attorney

Whether it is your personal license or your entity’s license that is in IDFPR’s crosshairs, please contact me.  I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Keeping Quiet: “Pleading the Fifth” In Professional License Proceedings

5th amendOh, to be Michael Cohen right now. Donald Trump’s long-time consigliere, “fixer,” and soon-to-be hostile witness is under criminal investigation and will likely be charged soon with a cornucopia of federal crimes which could send him up the river for decades. Cohen is also a defendant in the civil suit brought by Stormy Daniels in which she is seeking to void the hush money agreement about her affair with Trump that Cohen so kindly facilitated. Last week, Cohen told the court hearing the Stormy case that he was invoking his rights against self-incrimination under the Fifth Amendment to the U.S. Constitution and reusing to testify.

Cohen is “pleading the Fifth” in the Stormy case because he fears, rightly, that anything he says in that case could be used against him in the criminal investigation he is currently enmeshed in. Similarly, many physicians or other professionals licensed by the Illinois Department of Professional Regulation (IDFPR) can find themselves under investigation or facing disciplinary action by the Department for acts which could also be the basis for criminal prosecution. For example, a doctor who improperly prescribes medication could face the loss or suspension of his or her license and also be charged with a crime for such conduct.

In such situations, can or should the respondent in an IDFPR proceeding exercise their rights under the Fifth Amendment when their answers could result in criminal liability?

Fifth Amendment Applies in Disciplinary Proceedings

The Fifth Amendment provides that “No person shall be… compelled in any criminal case to be a witness against himself…” This privilege has also been incorporated in the Illinois Constitution. The privilege essentially means that no person, without proper immunity, can be required to implicate himself in a crime.

Although by its literal terms applicable only in criminal proceedings, the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties in civil proceedings, as Mr. Cohen recently did.

The logic behind applying the privilege in civil cases also applies to administrative actions such as IDFPR investigations and disciplinary proceedings, and can be asserted not only at a hearing, but during the investigation and discovery stage as well.  As the U.S. Supreme Court has stated:

“A witness’ privilege against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'”

As such, you can “plead the Fifth” before the IDFPR. The question of whether you should exercise your right against self-incrimination is a more complicated question.

A Tough Decision

Anybody faced with this choice faces a variation of the same dilemma. As the Supreme Court put it: a party must weigh “the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]” Accordingly, a “party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence.”

What makes the choice even trickier is that, unlike in criminal proceedings, IDFPR hearing officers can draw an adverse inference from the professional’s refusal to testify and hold it against the professional so long as there is other sufficient evidence to support their findings.

The gravity and implications of exercising your Fifth Amendment rights in an IDFPR proceeding require careful thought and a consideration of all of the possible consequences. It is a decision that will be based on the specific circumstances of your disciplinary matter as well as the possible criminal repercussions of the acts under investigation. It is a decision that should only be made in consultation with your lawyer.

Louis Fine: Chicago Professional License Defense Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to you clients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Attorney Louis Fine is available to speak on all Illinois professional licensing issues, including the unique challenges and potential pitfalls faced by physicians and other health care professionals. If you are interested in having Louis speak to members of your organization, company, or practice, please email him at louis@lrflaw.com