R.W., APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, APPELLEE
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An osteopathic physician appeals a judgment enforcing a subpoena duces tecum requiring production of patient files during a disciplinary investigation. The court affirms, holding that the Department of Professional Regulation properly served notice and subpoena together, and that physicians have no right to discovery of investigatory materials before an administrative complaint is filed.
The court affirmed both the enforcement of the subpoena and the denial of discovery. The Department properly satisfied statutory requirements by serving both notice of investigation and the subpoena together. Physicians have no right to participate in or discover materials from the investigatory process prior to filing of an administrative complaint. The subpoena was lawfully issued and reasonably tailored to the dates alleged in the complaint.
[1] A subpoena duces tecum may be lawfully issued and served concurrently with notice of an investigation and the substance of an informal complaint.
[2] A physician is not entitled to participate in the investigatory process for discovery purposes prior to the filing of an administrative complaint.
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Join FLexlaw to unlock all legal intelligence“there is no prohibition against serving both the notice of the investigation and the substance of the complaint along with a subpoena for the physician's medical records”
Establishes that the Department properly complied with statutory notice requirements by serving both documents together
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Join FLexlaw to unlock all legal intelligenceR.W., an osteopathic physician, was under investigation by the Board of Osteopathic Medical Examiners for excessively or inappropriately prescribing a…
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PER CURIAM.
R.W., an osteopathic physician, appeals a final judgment, entered after a hearing, granting the Department of Professional Regulation’s petition to enforce a subpoena duces tecum. The judgment ordered compliance with the subpoena to produce certain patient files, and denied the physician’s request for discovery of evidence presented to the Board of Osteopaths, as well as the Board’s deliberations, where a finding was made that probable cause existed to discipline R.W. for “excessively or inappropriately” prescribing a controlled pharmaceutical product. We affirm both rulings for the following reasons.
First, although section 455.225, Florida Statutes (1989), requires prior notice to a physician of the substance of an informal complaint filed against him and notice of the commencement of an investigation based on the complaint, there is no prohibition against serving both the notice of the investigation and the substance of the complaint along with a subpoena for the physician’s medical records. The trial judge was correct in his finding that the Department’s processes satisfied the statute.
Second, chapter 455 does not provide for participation by a physician in the investigatory process — for the purpose of discovery — prior to the filing of an administrative complaint. The Department, based on its investigatory findings, may decide not to prosecute the complaint. Section 120.58(2), Florida Statutes (1989), provides that a person subject to a subpoena may, before compliance, attack the subpoena as (1) not lawfully issued, (2) unreasonably broad in scope, or (3) requiring the production of irrelevant material. However, there is no provision for a pre-issuance challenge to the subpoena. The trial court conducted the hearing provided for by section 120.-58(2), found the subpoena unreasonably broad, and tailored it to comport with the dates alleged in the complaint. The record supports the circuit court’s determination that the subpoena was otherwise lawfully-issued and that the documents sought were relevant.
R.W.’s remaining challenges to the proceeding are premature.
Affirmed.
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State v. Reverend Henry Jackson, 576 So. 2d 864 (Fla. 3d DCA 1991)…t, after a careful review of the documents and records subpoenaed, the Department might choose not to pursue further actions regarding Jackson’s activities. See R. W. v. Department of Professional Regulation, Board. of Osteopathic Medical Examiners, 566 So. 2d 26 (Fla. 3d DCA 1990); Winfield v. Div. of Pari-Mutuel Wagering, Department of Business Regulation, 477 So. 2d 544 (Fla.1985). We need not render a final determination at this juncture as to whether or not Jackson’s activities constitute “consumer tran…