My 2 Cents

What is Your Impression of Attorneys?

I spoke with two nurses this week who both mentioned how badly they were treated by attorneys.

One nurse who allegedly diverted narcotics is seeking representation before the Nursing Board. She contacted two different attorneys. One attorney told her "what she did was stupid" but he would represent her. The nurse said she got the impression that the attorney didn't want to be bothered with her or her case because he was so condescending.

Another nurse is being investigated by the Nursing Board and is seeking attorney representation. She contacted at least 5 different attorneys. Two of the attorneys rushed her off the phone after quoting her a price for representation, one attorney was very crude and rude, and another attorney told her "I know some people on the Board and who work for the Board" and this may help her case.

What has been your experience with attorneys and law firms? What is your impression of attorneys and the services provided by attorneys?

Be honest, I can take it.

I enjoy practicing law. I am happy and I enjoy what I do for a living. Don't get me wrong, of course I have bad days like everyone else, but I am happy. 

I don't consider my law practice "a job" or "a position"; its my life, my livelihood, and its who I am. Its me from my bright business cards to my colorful letterhead. I am a RN and an attorney and I represent nurses.

I have worked in positions as an attorney just for the experience or the money and I wasn't miserable (okay actually I was in one position) but I always yearned for more. I was working in the position but planning and plotting my escape. Are you planning your escape? Have you recently escaped?

Nurses and Attorneys are service providers. Personally, I think how you feel about yourself and if you enjoy what you do for a living impacts how you treat, manage, and interact with clients, patients, or customers as a service professional. What do you think?

Nursing Licensure Compact-Disciplinary Investigations

See this link to the Ohio Board of Nursing website. Its the Meeting from the March 2008 Board Meeting.

View page 197 under National Council of State Boards of Nursing Focus on Group on Interstate Licensing. http://www.nursing.ohio.gov/PDFS/NextMeeting/M1/1.2.1March08DraftMinutes.pdf

There are still unanswered questions regarding the legal authority for investigations across state lines.

What does this statement say to you?

I have been involved in concurrent State Board of Nursing investigations, where a nurse is being investigated concurrently by two State Boards of Nursing. Its complicated because what happens in one case can and will impact the other case.

Some State Nursing Boards do not readily share investigative materials with other State Nursing Boards, although alot of Boards do "share" information regardless of Compact status.

Drug Diversion and Theft in Home Health & Hospice Care Environments

See this article that appeared in the Cincinnati Enquirer today. This healthcare worker (I am not sure if she is a licensed professional or a paraprofessional) was charged with theft of drug, a felony, for allegedly stealing medication from a hospice patient in the patient's home. http://news.enquirer.com/apps/pbcs.dll/article?AID=/20080514/NEWS01/305140012

Drug diversion occurs in the Hospital. The majority of nurses still work in hospitals although more and more nurses are working outside of the hospital setting (home care, hospice, doctor office, nursing home, assisted living, health clinic, etc.)

However with the Pyxis and fingerprint required to access controlled substances in some Hospitals, chemically dependent nurses are gravitating towards nursing homes, home health, hospice, and community health care environments were controlled substances are not as heavily monitored.

If you are a chemically dependent nurse and you are stealing drugs in a Hospital, you will eventually get caught. Seek help now. It usually starts with a pharmacy audit or questionable administration of prn medication, failure to document/witness waste, etc.

Contact a licensure defense attorney in your jurisdiction for a consultation because you want to know your options. Drug Diversion in nursing is complicated because it can have/has criminal, employment, licensure, and professional implications for nurses.

Your employer, Nursing Board staff, or law enforcement officers can not counsel and advise you on this process, advise you of your options, or give you an overview of the "big picture" in drug diversion cases.

Whether you realize it or not, you are representing yourself, proceeding pro se and missteps will occur because allegations of drug diversion and chemical dependency cases are complicated and there are multiple agencies or organizations involved in a typical case.

Also your situation is different from the nurse around the corner or the nurse who your friend knows who didn't have "anything" happen to her when she diverted drugs. Everyone and their mother will offer you "advice" on what you should do or what happened to "so and so" and how it turned out okay for this particular nurse who did this. Don't believe the hype.  http://www.youtube.com/watch?v=ASjH7X-jAY4

Should I self-report to the Nursing Board?

Should I apply to a Board of Nursing Alternative Program?

Will I be charged with a crime?

Do I admit guilt to an employer, law enforcement, etc.?

What am I guilty of?

Will my employer contact the Nursing Board and local law enforcement?

These are just a few of the questions that nurses in these cases consider.

 

Nursing Students, Criminal Convictions, and Employability

Now this is interesting. There are nursing students waiting in line for clinicals. Many of those students have criminal convictions and in my opinion should REALLY consider which state they apply to for initial licensure and whether or not their criminal convictions will damper their employability.

True story. My sister attended massage therapy school and graduated from a program here in Cincinnati. I won't say the name of the program. Its an expensive proprietary school.

To obtain licensure as a massage therapist in Ohio, you have to apply for licensure with the Ohio Medical Board. The Medical Board Application for message therapy licensure reminds me of the Ohio Supreme Court Application for Attorney licensure. The application asks for everything. http://www.med.ohio.gov/mt_about_massage_therapy.htm

Have you ever been a plaintiff or a defendant in a case? WOW! Yes, this includes a divorce. Yes, this includes a foreclosure. Yes, this includes a bankruptcy. Yes, this includes any type of case, litigation, or lawsuit. Yes, this means what its says.

There were several (more than half) of her class who had criminal convictions and the school never mentioned to any prospective student the role criminal convictions play in licensure.

What I am saying? Healthcare is a ripe field, especially nursing. However, if you have criminal convictions consider:

1. Am I eligible for a license in nursing, PT, OT, social work, respiratory therapy, message therapy, etc. because of my criminal convictions?

2. Eligibility is one thing, that's the floor; now look up from the floor to the celing. Based on the current licensure climate in State A before Board Z, what are the chances that I will be issued an unrestricted license vs. a restricted license (probation, fines, etc.)? This may require you to consult with a licensure defense attorney in your jurisdiction.

3. If I am issued a restricted and encumbered license by the State Board, can I find employment in the field with a restricted license? Where will I work? What are the chances that an employer will hire me? How employable am I? Am I further restricted in employment opportunities because of my criminal convictions?

4. Should I realistically consider employment in another field in healthcare? Maybe a career as a unlicensed professional or paraprofessional in healthcare.

5. Should I realistically consider employment in a field outside of healthcare because of my criminal convictions?

2008 LPN Renewal Application from the Ohio Nursing Board

The Ohio Board of Nursing Renewal Application changed this year!

This year, the LPN renewal application asks whether you have been convicted, found guilty, pled guilty to, pled no contest to, etc. of a felony or misdemeanor in Ohio, another state, commonwealth, territory, province, or country.

Nurses in Ohio now have to report ALL criminal convictions, felony or misdemeanor to the Ohio Board of Nursing on the renewal application. This includes DUI/DWI. This also include crimes that have been expunged if the crime has a direct and substantial relationship to nursing practice.

In the past (for example, the 2007 RN Renewal Application) the questions asked about crimes of moral turtitude, gross immorality, gross negligence, etc. In the past DUIs were excluded.

Criminal convictions (felony or misdemeanor) have a ripple effect for licensed healthcare professionals. Not only is it the criminal case, then its the licensure matter, then its employment issues (especially in Ohio with Senate Bill 38 and Senate Bill 160) see http://www.nursing.ohio.gov/pdfs/OHCRC.pdf, then the licensure action is reported to the Healthcare Integrity & Protection Data Bank.

I had a client contact me this week and say how much longer will I be beat over the head for a DUI conviction. The client is a nurse.

In Kentucky, nurses are required to report misdemeanor and felony convictions to the Kentucky Board of Nursing within 30 days of the conviction, plea, etc. However nurses do not have to report expunged or sealed convictions to the Kentucky Board of Nursing.

Should nurses and nursing students be required to report all criminal convictions to the Board of Nursing? What's your opinion?

 

Who Represents Nurses and the Nursing Profession?

See this post about Texas nurses debating the pros and cons of unionization. http://www.dallasnews.com/sharedcontent/dws/bus/stories/042308dnbusnurses.3b2e75d.html.

This is an excerpt from the article:

There hadn't been a nurses' union in Texas since the 1970s – until last month's vote brought one to a Houston hospital. Now it looks like Dallas will be the next battleground.

It was Dallas-based Tenet Healthcare Corp., the nation's third-largest publicly traded hospital system, that opened the door to nurses' unionization in this business-friendly, right-to-work state.

A March 27 vote at Tenet's Cypress Fairbanks Medical Center in Houston was the first successful union vote in Texas history, although an existing nurses' group here once operated as a union.

What will these mean for the Texas Nurses Association, which is the ANA affiliated professional association for Texas nurses? Will nurses migrate more so to unionization and union organizations now in Texas? Will the union efforts prompt nurses to join the Texas Nurses Association, which exists exclusively as a professional association?

I am not an alarmist however I will say this:

1. The majority of nurses don't support professional associations and the majority of nurses don't belong to a union. Why don't professional associations and nursing unions have the support of the 3 million RNs and LPNs in the country?    

2. Some ANA affiliated state nurses associations are running of risk of "not being considered the professional voice for nurses in a particular state." Why? If a nursing union like the CNA/NNOC or SEIU has more state-based members than a ANA-affiliated state nurses association, what happens? Does the organization with the most members in a particular state represent "nurses and the profession of nursing" in the state? Does it turn into a mines is bigger and larger than yours type thing?   

3. How does the current turmoil within the ANA Enterprise assist state nurses association which exist purely as a professional association, like the Texas Nurses Association or state nurses associations, like the Ohio Nurses Association, which exists as a union and a professional association? See my post the ANA saga and megadrama here. http://advocatefornurses.typepad.com/my2cents/2008/04/turmoil-once-ag.html

4. Survival. There's a song and verse, "only the strong can survive", "Its Called Survival." Can the ANA/State Nursing Associations, CNA/NNOC, UAN, and the SEUI all survive or thrive in today's nursing workplace? Or this is like Highlander, "There Can Be Only ONE." http://en.wikipedia.org/wiki/Highlander_(film)

What's your opinion?

See http://www.texasnurses.org/. This is the website for the Texas Nurses Association.

Testimony of a MSN Prepared Nurse Midwife Admissible

See Tabitha N.S. vs. Zimmerman, 2008-Ohio 1639. This was a wrongful death and survival action alleging medical malpractice and negligence against the hospital, physician, and OB nurses in the hospital.

In this case the appellate court found the trial court did not abuse its discretion by allowing a Nurse Midwife and former obstetrical nurse to testify on the standard of care for OB nurses as to alleged negligence of the hospital nurses in support of the claim against the hospital on the theory of respondeat superior in a medical malpractice action.

The nurse expert witness of the plaintiff was called as a medical expert. The nurse expert testified that she graduated from nursing school in 1976, and went on to specialize in obstetrical nursing. She also holds a master's degree in nursing. She worked as a registered nurse in labor and delivery until 1983, when she went to midwifery school; she then took and passed the exam required for certification as a nurse midwife. Since that time, she has worked as a registered nurse and certified nurse midwife. At the time of trial, she was working as a nurse midwife at a medical practice in Grand Rapids, Michigan. She further testified that she is also certified as a family nurse practitioner and works part-time at a medical office.

She is certified in fetal monitoring and is a member of the faculty at the College of Nursing at Grand Valley State University, where she teaches obstetrical nursing. She testified that as a midwife she monitors women prenatally, attends labor and delivery and provides care after childbirth. She further testified that she has cared for and evaluated women in pre-term labor and has performed vaginal examinations on pregnant women in order to assess pre-term labor. She also has experience in assessing whether a woman is having contractions, as well as in determining the position of a baby prior to delivery.

The defense objected to the testimony. The jury returned a verdict against defendants. A judgment entry awarding on the survival claim economic damages of $390,000 and non-economic damages of $500,000 and, on the wrongful death claim, the jury awarded compensatory damages of $2,000,000.

On appeal, the appellate court noted that an expert witness need only aid the trier of fact in the search for the truth and need not be the best witness on the subject.

The court noted the nurse midwife's testimony clearly set forth her many years of experience in the area of obstetrical nursing, including labor and delivery. Although the expert witness no longer working in a hospital setting, her experience in the field of obstetrical nursing was ongoing at the time of trial.

The appellate court found the nurse expert witness demonstrated that she had some degree of "specialized knowledge, skill, experience, training and education" in the field in which she sought to render an expert opinion.

Webinar for Future Nursing Leaders

Are you a nurse leader? Are you aspiring to be a nurse leader? Do you want to polish your skills to be a leader of nurses? What does it take to be a nurse leader in today's nursing workplace?

Consider attending this webinar.

See http://centerforamericannurses.org/tools/mayjune08webinar.pdf for additional information.

Nursing Students filing Complaints with the Office of Civil Rights

This post is overdue. This is a long post but its interesting because it touches on nursing education and the legal risks involved with being a nursing educator in today's litigious and complaint-happy world.

I have been contacted by more than one nurse educator or instructor who is involved in an Office of Civil Rights (OCR) investigation. See http://www.ed.gov/about/offices/list/ocr/complaintprocess.html.

OCR enforces several Federal civil rights laws that prohibit discrimination in programs or activities that receive Federal financial assistance from the Department of Education. These laws prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age. These laws extend to all state education agencies, elementary and secondary school systems, colleges and universities, vocational schools, proprietary schools, state vocational rehabilitation agencies, libraries, and museums that receive U.S. Department of Education funds. OCR also has responsibilities under Title II of the Americans with Disabilities Act of 1990 (prohibiting disability discrimination by public entities, whether or not they receive federal financial assistance). See http://www.ed.gov/about/offices/list/ocr/know.html.

What does this mean?

1. Nursing students can file complaints against nursing instructors and faculty for allegations of discrimination with the OCR. Nursing students can and some do file complaints with the State Board of Nursing against nursing faculty and instructors for alleged violations of the Nurse Practice Act and Board of Nursing regulations, and against the Nursing College/School. For example in Ohio, nursing students can file complaints against a nursing college/school. See the Nursing Education Dissatification Form available at the bottom of the page. http://www.nursing.ohio.gov/education.htm

2. Nursing instructors and faculty may find themselves needing personal counsel in this matters whether its before the OCR , civil suit, or the State Board of Nursing.

A nursing school or college attorney represents the nursing school or college. The "client" is the organization and you as a faculty member or instructor are included as a employee or independent contractor of the organization.

Nursing instructors and faculty need to make an independent decision at some point in these investigations whether or not to hire, at their own expense, personal counsel for legal representation, counseling, and advising.

I have been involved peripherally and know of several cases where a Nursing School/College attorney represents a nursing instructor/faculty before a Board of Nursing.....Nursing Instructors/faculty are licensed nurses and as such need to consider retaining independent legal counsel familiar with the State Nurse Practice, Board of Nursing regulations, and nursing practice standards for full scale and comprehensive legal representation, counseling, and advising in any matter involving nursing licensure and professional nursing practice. 

I have also been contacted in cases where a nursing educator, instructor, or faculty are involved in civil litigation and question the nursing school/college attorney's ability to represent the nurse educator, instructor, or faculty as an individual.

I simply remind the nurse of the role of the attorney defending the civil suit, Is NOT providing legal representation, counseling, and advising to the individual nurse on how the civil suit may impact his/her licensure, professional nursing practice, career, etc.

Guess what? You have to retain your own personal counsel in the civil litigation if that's your expectation and its not an unreasonable or unrealistic expectation. Retaining personal counsel, who is your private attorney involves paying money, which is the reason why I suspect most nurse educators, faculty, and instructors, like nurses in general, don't hire their own legal counsel.

I am an attorney and I don't want to pay legal fees. I don't have a slush fund for "legal defense." However I recognize the risks of being a licensed professional. That's why I have professional liability insurance for my nursing practice, legal malpractice insurance for my law firm, another policy for my consulting firm, an umbrella policy, and an insurance coverage for a little bit of everything else (pets, cars, house, medical, dental, disability to name a few). That's the benefit of insurance; your insurer will pay legal fees and costs associated with defending you and pay a judgment entered against you.    

3. Nursing Schools and Colleges should consider educating faculty and instructors on the legal risks associated with nursing education. Documentation is very important in nursing education and alot of things that should be documented are not documented. Nursing students of today are different than nursing students of yesteryear. Ask any nursing instructor, professor, or faculty.

Nursing students are more likely to file administrative complaints, file civil suits, pursue criminal charges, etc.  I posted this case last month. This is case where a nursing student pursued criminal charges against an instuctor for assault and filed a civil suit against a proprietary nursing school here in Ohio. See http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-993.pdf

 

Clinical Nurse Specialist Competencies

Urgent - Your feedback is requested on Core Competencies for Clinical Nurse Specialists

In May 2006 representatives from Clinical Nurse Specialist stakeholder groups were convened to participate in a National Consensus Initiative for Core CNS Competencies with the goal of identifying and reaching consensus on core CNS competencies relevant to the entry-level CNS, regardless of specialty, population, or setting.

Draft competencies and related specific behaviors have been identified. This is your opportunity to provide feedback about these core competencies, which reflect CNS practice and will guide future educational preparation. Let us know how these competency statements reflect your current practice and you academic preparation for the CNS role. We ask you to use the survey link below to provide your feedback.

Survey participants will be asked to rate competency statements and the related specific behavior statements for relevance and specificity.

You have until May 24, 2008 to complete. 

The survey can be accessed at the following link:

http://www.surveymonkey.com/s.aspx?sm=nsURtU6cmiMgQKNp0WyFXQ_3d_3d

Thank you in advance for your feedback on this important initiative.