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Defending Unlicensed Practice of Medicine and Unlicensed Practice of Health Care Professions Prosecutions
11/5/2009 4:56:31 PM
by Kevin J. Darken, Esq., Tampa, FL
A. Introduction
Increasingly, Florida Department of Health investigators are bringing criminal charges against electrologists and cosmetologists for unlicensed practice of medicine or unlicensed practice of health care professions for such conduct as performing laser hair removal without a physician being present, removing skin tags, or performing laser tattoo removal without a physician being present. My firm has defended four such cases in Hillsborough, Pinellas and Pasco Counties in the last two years. Each time we were able to resolve the case with a pretrial intervention agreement under which the criminal charges will be dropped upon completion of the pretrial intervention program. Although the facts of each case obviously differ, here is an outline of arguments potentially available for use in such cases.
B. Elements of the Offenses
Florida Statute § 458.327(1)(a) makes “[t]he practice of medicine or an attempt to practice medicine without a license to practice in Florida” a felony of the third degree. Florida Statute § 458.303(1)(a) provides that Section 458.327 “shall have no application to . . . other duly licensed health care practitioners acting within their scope of practice authorized by statute.”
Florida Statute § 458.305(3) defines “practice of medicine” as “the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.”
Florida Statute § 456.065(2)(d)(1) provides that “[i]t is a felony of the third degree . . . to practice, attempt to practice, or offer to practice a health care profession without an active, valid Florida license to practice that profession.” Attempting or offering to practice a profession is defined as including “[a]pplying for employment for a position that requires a license without notifying the employer that the person does not currently possess a valid, active license to practice that profession...”
Neither the unlicensed practice of medicine crime nor the unlicensed practice of health care profession crime by their statutory language contain any mental state element at all.
C. The Problem
Both the unlicensed practice of medicine and unlicensed practice of health care professions crimes are classified as Level 7 offenses under the Criminal Punishment Code in Florida Statute § 921.0022. Under the Criminal Punishment Code worksheet computations in Florida Statute § 921.0024 the lowest permissible sentence for a Level 7 offense committed by a defendant with no prior record, no victim injury, and no other aggravating factors is 21 months imprisonment.
D. Arguments
I. The Defendant Did Not Practice or Attempt to Practice Medicine or a Health Care Profession
In one case we defended in Pasco County, the defendant electrologist was charged with unlicensed practice of medicine for performing laser tattoo removal. We argued to the State Attorney’s Office that nothing in Florida Statute § 458.305(3) says anything about the practice of medicine including tattoo removal. Moreover, a tattoo is not a disease, a pain, an injury, a deformity, a physical condition, or a mental condition. Similarly, removing a tattoo is not a diagnosis, an operation, a prescription, or a treatment because there is nothing medically wrong with the skin underlying the tattoo. Just as taking a person’s blood pressure is not the practice of medicine because “blood pressure is not a disease”, so too tattoo removal is not the practice of medicine because a tattoo is not a disease either.1
As further support, we noted that research had located no case in any state holding that tattoo removal constitutes the practice of medicine. Furthermore, we observed that Florida Statute § 877.04 permits tattooing, as opposed to tattoo removal, to be done under a physician’s general supervision without requiring a physician’s presence during the tattooing procedure. We argued that since tattooing does not have to be performed by a physician, and does not even have to be performed in the presence of a doctor, how can tattoo removal constitute the practice of medicine?
In another case we defended in Pinellas County, the defendant electrologist/cosmetologist was charged with unlicensed practice of a health care profession for offering to remove skin tags from an undercover detective with an electrolysis instrument. First, we argued to the State Attorney’s Office that the defendant had not “offered” to remove skin tags from the detective, she had merely quoted a price.2 Second, we argued that removal of skin tags by an electrolysis instrument did not constitute the practice of a health care profession which the defendant was not licensed to practice. As a licensed electrologist, the defendant was permitted to practice electrology, which is defined in Florida Statute § 478.42(5) as “the permanent removal of hair by destroying the hair-producing cells of the skin and vascular system ....” Applying an electrology instrument to skin tags, we asserted, would have destroyed the hair-producing cells of the skin and vascular system on the skin tag. As support for that argument, we downloaded internet sites of electrologists around the country to show that it is commonplace for electrologists to use electrolysis to remove skin tags.
In two cases we defended in Hillsborough County, the defendant electrologists were charged with unlicensed practice of a health care profession for performing laser hair removal while not being under a physician’s direct supervision and responsibility. We argued to the State Attorney’s Office that the key term “direct supervision and responsibility” is not defined in either Florida Statutes or the Florida Administrative Code.3 We pointed out that “direct supervision and responsibility” is a combination of two definitions formerly contained in FAC Section 64B8-2.001 prior to its amendment in 2001. That section defined “direct supervision and control” as requiring “the physical presence of the supervising physician on the premises so that the supervising physician is immediately available when needed.” However, that same section also defined “direct responsibility” as meaning “that the responsible physician need not be physically present on the premises but must be within close physical proximity and easily accessible.” The key term “direct supervision and responsibility” is thus a combination of two conflicting definitions, one of which requires the physical presence of the supervising physician and one of which does not. As further support, we provided minutes from four meetings of the Florida Electrolysis Council in 2006-2007 demonstrating that even this body did not agree that that a supervising physician was required to be on the premises when laser hair removal was done by a licensed electrologist.
II. No Constitutionally Required Fair Warning Was Provided to the Defendant that the Alleged Conduct Constituted the Practice of Medicine or the Practice of a Health Care Profession
The Due Process Clauses of both the Florida Constitution and the United States Constitution are designed in part “to insure that no individual is convicted unless ‘a fair warning [has first been] given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’”4 In the Pasco County tattoo removal case, we argued that no constitutionally required fair notice was provided in either Florida Statutes or the Florida Administrative Code that a non-physician who performs laser tattoo removal was committing the felony crime of unlicensed practice of medicine. In the Hillsborough County laser hair removal cases, we argued that the ambiguity of the key term “direct supervision and responsibility” precluded the constitutionally required fair warning.
III. The Defendant Did Not Know His or Her Conduct Was Illegal
As stated above, neither the unlicensed practice of medicine crime nor the unlicensed practice of health care profession crime contains a mental state element. Moreover, the Florida Supreme Court has stated that “under the Medical Practice Act the state is required to prove only the elements of the crime charged: that defendant is not a licensed physician, but that he practices medicine within the statutory definition.”5 However, both Florida courts and the United States Supreme Court have held that even criminal statutes which do not explicitly require proof that the defendant knew he or she was acting illegally in fact implicitly require proof that the defendant knew his or her conduct fell within the statutory prohibition.6 Because both the unlicensed practice of medicine crime and the unlicensed practice of health care profession crimes are third degree felonies punishable by up to five years imprisonment, those statutes must be interpreted as requiring that the defendant knew his or her conduct was illegal in order for those statutes to be constitutional.7
Proof that the defendant did not know his or her conduct was illegal is likely too easily available. In some cases, defendants openly advertise the charged conduct. In other cases, defendants have relied on web sites which advise that direct physician supervision is not required for laser hair removal by electrologists in Florida. In still other cases, the defendant’s transaction with an undercover detective may be recorded and the defendant may display no indications that he or she thinks the charged conduct is illegal or even wrong.
E. Conclusion
Criminal unlicensed practice of medicine and unlicensed practice of health care profession prosecutions are high stakes cases for the defendants because of both the mandatory prison sentence which will follow a conviction and because of the effect a conviction will have on the defendant’s license to practice electrology, cosmetology or another profession. Yet there are arguments available for skilled defense counsel to make which may well persuade a prosecutor to either drop the case or else resolve the case through a pretrial intervention program.
Kevin Darken, Esq., practices white collar criminal defense, False Claims Act and qui tam litigation, and health care litigation at Cohen & Foster in Tampa, Florida. He is a former federal prosecutor, the author of Defending and Preventing Health Care Fraud Cases: An Attorney’s Guide (CCH Aspen: 10th ed. 2008), and a 1986 graduate of Harvard Law School.
Endnotes:
1 L. W. Lambert v. State, 77 So. 2d 869, 871 (Fla. 1955) (“One who takes blood pressure tests only, announces the result without giving advice or prescribing treatment, is not a medical practitioner... It seems to be recognized that blood pressure is not a disease but is one of the symptoms or factors which aids the physician in diagnosing the physical condition of the patient”).
2 In Scullock v. State, 377 So.2d 682, 683 (Fla. 1979), the Florida Supreme Court defined the verb “offer” as “to make a proposal to” and “to try to begin or exert.”
3 Florida Administrative Code Section 64B-56.002(2)(d) and (4)(a) provide that licensed electrologists may use laser hair removal devices only if they “are operating under the direct supervision and responsibility of a physician” and do so pursuant to written protocols. Similarly, Florida Statute Section 458.348(3) provides that protocols for electrologists using laser hair removal devices shall require electrologists to work “only under the direct supervision and responsibility of a physician...“
4 Hermanson v. State, 604 So.2d 775, 782 (Fla. 1992), quoting Mourning v. Family Publications Service, Inc., 411 U.S. 356, 375 (1973).
5 Reams v. State, 279 So.2d 839, 843 (Fla. 1973).
6 State v. Giorgetti, 868 So.2d 512, 520-521 (Fla. 2004) (state must prove defendant was aware of the registration requirement and therefore knew his conduct was illegal in order to convict defendant of failing to register as a sex offender); Chicone v. State, 684 So.2d 736, 744 (Fla. 1996) (to convict a defendant of possession of controlled substances, the state is required to prove that the defendant knew of the illicit nature of the items in his possession and thereby knew his conduct was illegal); Cohen v. State, 125 So.2d 560, 563 (Fla. 1960) (statute prohibiting sale of obscene material required that state prove defendant’s knowledge of the obscene nature of the material and thereby knew his conduct was illegal); Siplin v. State, 972 So.2d 982, 989-90 n.9 (Fla. 5th DCA 2007) (holding that F.S. § 106.15(3) must contain an implied knowledge element so that a candidate for public office cannot be convicted of “us[ing] the services of any state, county, municipal, or district officer or employee during working hours” without proof that the defendant did so knowingly and thereby knew his conduct was illegal); Staples v. United States, 511 U.S. 600, 619 (1994) (to convict a defendant of possessing an unregistered machine gun, the government must prove beyond a reasonable doubt that the defendant knew the weapon he possessed had characteristics that brought it within the statutory definition of machine gun and thereby knew his possession was illegal); Liparota v. United States, 471 U.S. 419, 426 (1985) (to convict a defendant of unauthorized acquisition or possession of food stamps, the government must prove beyond a reasonable doubt that the defendant knew his possession of food stamps was unauthorized and thereby knew his conduct was illegal); United States v. X-Citement Video, Inc., 513 U.S. 64, 77 (1994) (federal child pornography statute required that a defendant have knowledge that the performer was a minor and thereby knew his conduct was illegal).
7 State v. Giorgetti, 868 So.2d 512, 518-519 (Fla. 2004) (holding that the third degree felony penalties for the crime of failure to register as a sex offender required the state to prove that the defendant was aware of the sex offender registration requirement); Chicone v. State, 684 So.2d 736, 742-43 (Fla. 1996) (“The penalties imposed for violating [controlled substance statutes] are incongruous with crimes that require no mens rea. For example, a defendant convicted of possession of a controlled substance can receive up to five years imprisonment....”); Staples v. United States, 511 U.S. 600, 617 (1994) (holding that the “potentially harsh penalty” of up to 10 years imprisonment for possession of an unregistered firearm is a factor supporting “the usual presumption that a defendant must know the facts that make his conduct illegal”).
Kevin J. Darken
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