By Healthcare Law Attorney Alex Scarbrough Fisher
Just how little does the government have to prove to revoke your nurse practitioner license? This post looks at the legal standard required to prove facts in a contested case hearing in order to impose discipline on a nurse practitioner. Even though this delves into more technical legal concepts than in the norm on ThriveAP, it’s important to understand how much, or rather, how little, the Department of Health has to prove in a licensure action against an NP.
Burden of Proof
In a contested case hearing involving a discipline action brought against one’s advanced practice nursing license, the Department of Health carries the burden of proof. The burden of proof is the legal term used to describe the threshold a party seeking to prove a fact has to reach in order to have the fact legally established. In a criminal court case, the burden of proof the prosecutor has to reach to establish facts is that of beyond a reasonable doubt. In a civil action, generally, as well as in a contested case hearing involving licensure discipline before the Department of Health, the burden of proof required is preponderance of the evidence.
Preponderance of the Evidence: What Does That Mean?
Preponderance of the evidence requires demonstrating that a fact is more likely true than not. In practical terms, this means that the Department of Health has to convince the Board of Medical Examiners or Board of Nursing that the Department has at least 51% of the proof in their favor, while you, the nurse practitioner, have only 49% of the proof in your favor.
Proof can be established in a contested case hearing through the testimony of witnesses, the introduction of relevant, nonhearsay documents, or the introduction of affidavits, agreed to by both parties. One of the most important roles of a nurse practitioner’s attorney in preparing for a contested case hearing is to gather evidence to disprove the allegations that the Department has set forth in the formal notice of charges.
Why Does the Burden of Proof Matter?
The preponderance of the evidence standard is significant for a nurse practitioner preparing for a hearing before the Board of Medical Examiners or Board of Nursing because it conveys what level of proof the Department is required to reach in order to prove that the NP has violated a law or regulation and deserves punishment. Preponderance of the evidence is an important standard to consider when preparing one’s defense for a contested case hearing.
Finally, preponderance of the evidence is simply a low threshold requirement for the Department of Health to meet in order to revoke an individual’s license to practice medicine or nursing. A nurse practitioner going before the Board of Nursing needs to be aware of this low standard, and prepared to properly rebut it in a contested case hearing.
Alex Scarbrough Fisher is an associate attorney at Frost Brown Todd LLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.
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