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