Take 5 before Taking the Fifth
Take 5 before Taking the Fifth

On Friday, June 22, 2018, a Florida Appeals Court handed down its decision in Omulepu v. Department of Health Board of Medicine.  The case involved a doctor's appeal from a decision by the Florida Department of Health, Board of Medicine to revoke a plastic surgeon's right to practice medicine.  The main issue on appeal was the effect of the doctor's invocation of his Fifth Amendment right not to incriminate himself.

In criminal proceedings, a defendant's invocation of his Fifth Amendment privilege cannot be used against him.  Juries are instructed in criminal cases that they cannot draw any inference from a defendant's refusal to testify.  Indeed, jury selection in a criminal case often focuses on ensuring a jury can and will follow this important safeguard.

But the issues are less cut and dried in the civil and administrative contexts.  Generally in civil cases, invocation of the Fifth Amendment results in an adverse inference against the invoker.  See Baxter v. Palmigiano, 425 U.S. 308 (1976), and its progeny.  To be sure, as warned in the concurring opinion in Omulepu, this is an inference only.  It must be combined with other evidence for a sustainable result and cannot serve as the sole basis for a verdict or decision.  But the inference is a powerful one nonetheless.

In Omulepu, the doctor claimed no such inference should have been permitted in his license revocation proceeding.  The Florida appeals court disagreed, and noting the existence of other evidence against the doctor, deemed the adverse inference both proper and probative.

Omulepu serves as a reminder to doctors facing administrative hearings and board suspensions, and lawyers counseling them, to factor carefully the pros and cons of an invocation of the Fifth Amendment. Often, the overarching concerns leading a doctor to invoke his right are simply too great, no matter the adverse inference or its consequences. But at the margins, there may be reasons to take 5 before taking the Fifth, and game out the consequences first.




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