My 2 Cents

Is My Employment Contract Fair & Reasonable?

Do you have an employment contract? Have you been offered an employment contract? Can you spot the red flags in an employment contract?

An article I wrote on employment contracts was published in the NURSES FIRST, the official journal of the Center for American Nurses, Volume 1, Issue 2, September/October 2008.

The title of the article: Is My Employment Contract Fair & Reasonable? The article is part of a bimonthly column appearing in journal.

The article is available online for members of the Center for American Nurses. Don't know if you are a member of the Center?

If you belong to a State Nurses Association (Constituent Member Association of the American Nurses Association) that is a Center member you may be a Center member. Check with your State Nurses Association or contact the Center at www.centerforamericannurses.org.

Chances are however you are probably not a member of a state nurses association because the majority of nurses are not members of a state nurses association.

Guess what? You can join the Center as an associate member and have access to the Center's online journal and receive a discount on legal products and services. The membership application is available at  http://centerforamericannurses.org/displaycommon.cfm?an=1&subarticlenbr=5

Legal Basics for Nurses webinars- Center for American Nurses

The Center for American Nurses is pleased to announce its new legal webinar series. These cutting edge legal webinars will be presented by expert nurse attorneys with years of legal and courtroom experience and expertise in nursing law and issues. The first series focuses on the nursing aspects of civil, criminal, administrative, and employment law.  During these 75 minute sessions experts will review due process in licensure disciplinary investigations and provide you with strategies to protect yourself.		Session 1: What to Do When the State Board of Nursing Calls Nancy Brent, RN, MS, JD Date:  October 22, 2008 Time:  7:00 pm to 8:15 pm EST
	Series 1 — Centered on the Nurse: October 22, 2008 —- What to Do When the State Board of Nursing Calls Nancy Brent, RN, MS, JD November 19, 2008 — The Nurse as a Criminal Defendant Joe Flores, RN, MSN, JD December 17, 2008 —The Nurse as a Civil Defendant JoeAnne Sheehan, RN, JD January 21, 2009 — Nursing Rights & Responsibilities in the Workplace Edie Brous, RN, MS, MPH, JD Each live webinar will be held from 7:00 pm to 8:15 pm EST.  Pricing: Center Members    $49.95 per session             Non-Members        $69.95 per session             Register for the entire Centered on the Nurse Series: Center Members    $175.00           Non Members         $225.00 Register at www.centerforamericannurses.org Each legal webinar will provide 60 minutes of lecture and 15 minutes of questions and answers for a total of 75 minutes. The Center for American Nurses is co-providing this activity with Anthony J. Jannetti, Inc. (AJJ). Anthony J. Jannetti is accredited as a provider of nursing continuing education by the American Nurses Credentialing Center's Commission on Accreditation.

4,000+ Complaints in Ohio Nursing Board and Counting!!!

See the proposed FY 2008 Ohio Board of Nursing Report which will be considered by the Ohio Board of Nursing at the Board Meeting next week.

See http://www.nursing.ohio.gov/PDFS/NextMeeting/M2/2.2AnnualReportDraft2008.pdf.

See page 11 and 12.

The majority of the complaints involved NCLEX Applicants (915), followed by Practice (761), then Drugs/Alcohol (722). Even Advanced Practice Nurse Practice Issues (15)complaints increased with this fiscal year.

What does this say to you about the practice of professional nursing and the regulation of nursing practice?

RN sued an Ohio Hospital for False Imprisonment, Defamation, and Negligence

See this Ohio case that held the RN was not confined by the hospital, while awaiting drug test results. The RN sued the hospital for false imprisonment. Her case was dismissed on motion for summary judgment filed by the hospital and she appealed. The appeals court affirmed the motion for summary judgment for the hospital.

Make sure you read the dissenting opinion.

Do you think this was false imprisonment? How would your employer handle this type of situation?

The case is Sharp v. Cleveland Clinic, 176 Ohio App.3d 226, 2008-Ohio-1777. Click on the link to review the case

http://www.sconet.state.oh.us/rod/docs/pdf/11/2008/2008-ohio-1777.pdf

I See Why Nurses Represent Themselves

This was a busy week for me with inquires about representation.

I had a nurse say to me after I quoted him a flat fee for representation "I've spoke with three attorneys about representing me before the Board. The fees are too high and I see why nurses represent themselves in these cases." See this article/CE. http://www.wildirismedicaleducation.com/courses/147/index_nceu.html

My response was that is your choice. You as a professional have to decide whether to represent yourself or retain an attorney to represent you in a Nursing Board investigation.

Flip a coin, heads you represent yourself and tails you retain a licensure defense attorney. Maybe that is the better way to decide.

If I Hear "I only signed the Nursing Board Agreement because I didn't have a choice" Again

In a democratic society, you always have a choice. You may not like your options and choices but you have a choice. Wars have been fought and blood has been shed so that we as Americans have a choice in deciding how we live, work, raise our children, vote, etc.

If I had $19.99 for every time a nurse told me this I could afford to send my five dogs to therapy with a expensive shrink.

"I only signed the Nursing Board Agreement because I didn't have a choice"

Last time I checked, State Boards of Nursing are regulatory agencies of a State and are required to afford licensees with procedural due process before "taking action" against a license. You have choices in a Board of Nursing investigation whether or not you know you have rights, choices, and options. You have options although depending how far along in the process you are, you may not like your options and choices. But you still have a choice, rights, and options.

You also have a choice to determine whether or not you want to be informed of what your options are before you sign a document that impacts the remainder of your nursing career. Its your decision whether you decide to contact a licensure defense attorney or sign an agreement offered by the Board of Nursing to resolve your complaint. Its your choice whether or not you proceed to a hearing. Its your choice whether or not you speak with a Board of Nursing investigator. Its your choice whether or not you submit a formal response to the Complaint. Its your choice whether or not you agree to an investigative meeting to further discuss the complaint with an investigator.

Do you know what your rights, options, and choices are in a Nursing Board investigation?

Should you know what your rights, options, and choices are in a Nursing Board investigation?

What do you do if you don't know what your rights, options, and choices are in a Nursing Board investigation?

What Happens After "Board of Nursing Action" Against Your License?

This has been a very stressful week for me with my nephew being hospitalized for his ASD Repair. His ASD Repair is complicated by his pulmonary hypertension. We were really concerned that he may have to go on Flolan after his surgery. However no Flolan just his usual regimen of Digoxin, Lasix, Vasotec, Viagra, and Tracleer for now. His pulmonary pressure prehospitalization was just as high as his systemic blood pressure. Post-surgery his pulmonary pressure is still running higher than normal but lower than it ever has. We were praying that his pulmonary hypertension was secondary to his ASD and other cardiac defects.....but we are so happy the surgery was successful and that he is recovering.

I had a nurse practitioner contact me this week. She agreed to action against her license and now she can't find a job. I have a consultation scheduled with her this week to discuss her options.

1. Before you "agree" to action against your license, consult with a licensure defense attorney. You want to know what are chances for employment if you agree to action against your license and you want to know what your options are in the licensure matter before you sign a legal document. Talk to a nurse attorney who repesents nurses before the Nursing Board. You want someone who can give you the "skinny" fairly quickly. An attorney who represents nurses should be able to review your Agreement and have a discussion with you about what happens after Board of Nursing action against your license.  

2. Contact your state nurses association or the local chapter of the specialty nurses association. Lots of professional associations offer workplace consultations and counseling services.

Is Nursing for Everyone who wants to be a nurse?

I spoke on Monday at the Southwestern Ohio Nurses Association (SONA) annual meeting. I presented on Ohio Nursing law and rules; it was a one hour CE program offered by my consulting firm.

I had a ball! I had a chance to see old friends and colleagues at the Meeting.

This was a very interactive audience with excellent comments and questions about nursing licensure, criminal convictions, and student nurses.

I posed the question of whether we as a profession as socializing new nurses in the professional nursing practice. Comments varied.

There were lots of questions and comments about nursing students and criminal convictions and why are we seeing so many nursing students with criminal convictions.

I even had someone approach me after this meeting who works as a RN with incarcerated women. She mentioned that alot of these women (who are currently incarcerated in a women's penitentiary) were former nursing students or worked in the healthcare field and want to pursue a nursing education upon release. She wanted to know if these women (not individual cases but the women as a whole) had a chance for nursing licensure because of their criminal convictions and prison terms.

I was at a professional association meeting a few months ago and someone mentioned that a good percentage of the nursing students of today were the Taco Bell and McDonald workers ten and fifteen years ago and this is the reason why there has been a shift i the "mind set" of nursing students and more nursing students with criminal convictions.

A comment was made at this meeting that nursing schools shouldn't take a nursing students money if the school knows this individual will not be able to obtain a nursing license or will obtain a license with restrictions that will impact employability and career satisfaction. Wow!!

Don't flame me, this is just my two cents and a few observations:

1. Nursing is a female dominated profession and this attracts women of course.

2. Nursing has multiple entry levels to practice and this is very appealing especially in these tight economic times.

3. Nursing is seen as end to a means or a means to an end depending on who you are and where you are because of the multiple entries (LPN (one year), RN (two year), RN (four year), RN accelerated if you have a Bachelor's degree in another field, etc.)

4. Criminal convictions and criminal issue happen; there are lots of folks with criminal convictions. 

5. Individuals with criminal convictions like everyone else seek professional training and employment and healthcare and especially nursing is seen as a very viable option.

6. Nursing is considered one of the most trusted professions.

7. A career in nursing is not a right or entitlement. Nursing is not for everyone. Individuals with criminal convictions need to do some research and speak with a licensure defense attorney before applying to a nursing school to make informed decisions. A licensure defense attorney won't embellish your "chances of licensure" unlike some others.

8. State Nursing Boards, Nursing Schools/College, and Nursing Clinical Sites will continue to look into criminal convictions unless parameters and boundaries are imposed by the state or federal legislatures.

9. Proprietary nursing schools.

Ohio Attorney General Newsletter-Spring 2008

Here is a Spring Newsletter received from the Ohio Attorney General's Office. There are cases related to licensure discipline of physicians that may be of interest to nurses in the Newsletter.

Download admin_law2008041.pdf

Ohio Litigation involving a Nurse turns a Private Issue into a Public Forum

I receive a publication from the Ohio State Bar Association listing a summary of Ohio appellate cases each week. I receive the "Green Book" for attorney discipline cases because I want to make sure I am not doing what those attorneys did and for case law involving nurses and nursing.

I found a very interesting case which in my opinion illustrates why you there are some things that just shouldn't be litigated. A very private matter involving a nurse and her husband and her lover is a public record and was published in the Ohio State Bar Association Report.

The case involves criminal charge, civil complaint, marital  infidelity, and illegal wiretaps. Not the kind of thing you want published and made public when you are a licensed professional. 

See Hodges v. Hodges, 175 Ohio Ap..3d 121, 2008-Ohio-601 at  http://www.sconet.state.oh.us/rod/docs/pdf/6/2008/2008-ohio-601.pdf.

Ohio Peer Support Programs for Chemically Dependency

What is the status of Peer Support Programs in Ohio for chemically impaired and dependent nurses?

See this memo from the President of the Ohio Board of Nursing to the President of the Ohio Nurses Association. http://www.nursing.ohio.gov/PDFS/NextMeeting/M2/6.3ONALetter.pdf.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

Identification Theft of Nursing Home Residents in Northern Kentucky

I had my purse stolen two weeks ago, which included my driver's license, debit cards, credit cards, and professional licenses. This occurred the day before I was flying to Washington, D.C. for a Center for American Nurses Meeting. I was hysterical.

So you can imagine the feeling of these nursing home residents who had their identity stolen by nursing home employees. The thieves applied for credit cards and purchased hundreds of thousand of dollars in merchandise.

The article did not indicate if any of the employees were nurses. See http://news.enquirer.com/apps/pbcs.dll/article?AID=/20080430/NEWS01/804300343.

The nursing home is of course embarrased and saying one employee used a fake identity to obtain employment. Hmm? What about fingerprinting and obtaining a national background check? Fingerprints don't lie. Most nursing homes have high turnover with direct care staff and I can imagine a scenario where a nursing home cuts a few corners to bring a "body" on board for staffing purposes.

What has been your experience with practicing in a nursing home? What's the good, the bad, and the ugly about practicing as a nurse in a nursing home?

I must be honest; yes, attorneys can be honest. I worked in a nursing for almost a year after I graduated from my ASN program and was working on my BSN. I did not enjoy it although I worked only two shifts a week. It could have been that I was a new nurse and I really wanted to work in a hospital and saw the nursing home as just a "job" until something else opened up. This was in 1993 and Hospitals here in Cincinnati were not hiring new grad nurses at the time.   

This is a cut and paste of part of the article below: 

Kathy McCameron, executive director of Atria Highland Crossing, said Bounds' background check showed no criminal history.

That was because Bounds wasn't the name she gave the nursing home when she applied. She used another identity that had no criminal history, McCameron said.

Bounds worked just one shift at Atria before McCameron told her to leave "because of some other incidents" that McCameron refused to specify.

The identity thefts started coming to light last summer when nursing home residents received bills for credit cards that they didn't know they had.

Those credit cards paid for pricey electronics as well as bills for cell phones and cable television.

The U.S. Secret Service, U.S. Postal Inspectors and police departments began investigating.

Disciplinary Investigations & Adjudications in Indiana

In Indiana, the Medical Licensing Section of the Office of the Attorney
General (OAG) investigates complaints against licensed health professionals including nurses to to determine whether a violation
of a licensing statute or regulation has occurred.

For additional information about the process, see page 12 of the March 2008 Nursing Focus, the Indiana BON's newsletter. See http://www.in.gov/pla/files/March2008.pdf.

The disciplinary investigation and adjudicative process and procedures vary from state to state. However there are several constants:

1. Its an adverserial process;

2. The role of the State is always public protection;

3. The role of the State is not to advocate for the best interest of its licensees; and

4. State employees (investigators, analysts, attorneys, reviewers, etc.) cannot provide you with legal representation or give you legal advice;

5. You have a right to due process in the investigative and adjudicative proceedings which includes the right to retain an attorney to defend you, notification of the allegations against you, and to a fair hearing.

Indiana State Nurses Assistance Program (ISNAP)

An article about ISNAP, the alternative program for nurses with chemical dependency issues in Indiana appears in the March 2008, Nursing Focus. Nursing Focus is the IN BON's newsletter. See page 6. http://www.in.gov/pla/files/March2008.pdf.

Employment Contracts: Beware!

I am seeing some very one-sided and unfair employment contracts here lately. These are downright ugly agreements. I think the majority of nurses sign the contracts without retaining an attorney to review the Contract.

In one case, a former employer is actually suing the nurse in civil court for breach of contract.

Think about it for a minute. Employment contracts are usually written by the facility's attorney with the facility's best interest in mind. I like employment contracts for nurses as a tool. However if a contract is so one-sided where only the employer has real benefits, then you may fare better working as at-will employee than being tied to a contract.

DO NOT sign an employment contract without having your attorney review it first. You can and may be sued for breach of contract for not performing in accordance with the contract.

For example, see:

http://seattletimes.nwsource.com/html/businesstechnology/2004299735_jobsnursing23.html

According to the article:

Interns are hired as hospital employees, but they are also required to attend lectures, lab sessions and work with preceptors. Upon completion of the program, Reese said, they will have a job even if there is not a posted opening at the hospital. Southwest estimates that each intern receives $50,000 worth of training. In return, interns are expected to make a two-year commitment to the hospital after the training is complete.

*******************************************************

$50,000 worth of training in exchange for a two year commitment. I am sure there is a contract or formalized agreement drafted by the Hospital's legal counsel or in-house attorney involved.

Be your own risk manager and have an attorney review ANY document or contract involving your nursing license and your employability as a nurse before you sign it.

Legal Strategies for Nurses-Columbus, Ohio

The American Association of Nurse Attorneys (TAANA) has a full day seminar for nurses in Columbus, Ohio. The date is Thursday, April 10, 2008. See the attached flyer. Download taanaohflyer1.pdf.

I am presenting Protecting Your Nursing License and Avoiding Discipline. Its a hour session.

Last year, I didn't do alot of presentations. I personally prefer to present posters. I don't have a fear of public speaking but I enjoy the personal contact and networking associated with presenting posters. Do you prefer to present oral or poster abstracts?   

Its Due Process Alright! Its Just Watered Down and Caffeine Free

I support my State Bar Associations. Membership is voluntary but I do belong to the Ohio State Bar Association and the Indiana Bar Association. Kentucky is a mandatory bar, so I don't have a choice. But that's another post.

One of the benefits of OSBA membership is the Ohio Bar Report, the green book which includes litigated cases including attorney discipline.

In Discipline Counsel v. Heiland, 116 Ohio St.3d, 2008-Ohio-91, an attorney was charged with violating the Code of Professional Responsibility. One of the attorney's argument's was that his right to due process was violated because the charging agency was allowed to amend its complaint 20 days before a scheduled hearing.

The Ohio Supreme Court stated "the standards of due process in a disciplinary proceeding are not equal to those in a criminal matter. A disciplinary proceeding is instituted to safeguard the courts and to protect the public from the misconduct of those who are licensed to practice law, and is neither criminal nor a civil proceeding."

Do you think licensed professionals and licensed healthcare professionals including of course nurses should be afforded the same rights afforded to criminal defendants and civil litigants in administrative disciplinary investigations?

In my opinion, due process is due process. Why should we as licensed professionals be afforded less due process when its your license and your very livelihood at issue? Its another licensed professional this time, but it may be you next time or in the future.

Maybe state nursing associations and other organizations that advocate for nurses should tackle this issue. What do you think?

Are You Looking for Free Legal Advice?

Guess what? You won't get it here.

I receive at least three to ten phone calls a month from nurses who essentially want legal advice without establishing an attorney-client relationship. I've been an attorney for almost 11 years and in private practice for 7 of those years so its easy to identify those callers.

I cannot and will not provide advice or counseling to anyone without establishing an attorney-client relationship. This protects me and it protects the nurse also.

Some attorneys offer free legal consultations. I don't. Most attorneys who offer free legal consultations often handle cases on a contingency basis and therefore use the free consultation as means to screen cases for merit.

I don't handle contigency cases and I don't sue anyone or any agency. I use flat fees for the majority of my cases. I use hourly billing for insurance defense work and institutional clients, like hospitals, schools of nursing, etcs.

My law practice involves representing, counseling, and advising nurses in licensure and professional practice matters. I defend nurses who have been reported to the Indiana, Kentucky, or Ohio Board of Nursing. I also represent nurses before federal and state regulatory agencies and counsel nurses on labor, employment, clinical, and contractual issues.

If you have a workplace issue, contact your state nurses association first. You can speak with a staff person there and they may be able to assist you. You can also contact the state board of nursing for information about nursing practice issues.

However if you want legal advice and counseling from an attorney licensed in your jurisdiction; schedule a consultation, either via phone or in-person with an attorney in private practice.

I have said this many times before....I think this is one area where state nurses associations and/or national nursing associations can provide a real and identified need AND fill the void between worplace consultations and legal consultations for the 3 million RNs and several hundred thousand LPN/LVNs in the United States.

What do you think? Most dentists and physicians have an attorney either on retainer or  whom they have utilized for business transactions. Nurses for the most don't have an attorney on retainer for legal services related to professional nursing practice.

Texas Medical Board Being Sued

The Association of American Physicians & Surgeons (AAPS) is suing the Texas Medical Board and alleges that the Texas Medical Board engages in the manipulation of anonymous complaints, has conflicts of interest, violates the due process of physicians, engages in breaches of privacy, and engages in retaliation against those who speak out. See the attached complaint. Download tmb-12-20-2007.pdf

Do you think healthcare licensing boards, including Medical, Pharmacy, and Nursing Boards, need a major overhaul? If so, what changes would you recommend?

Do you think national and state nursing professional associations will respond to the lawsuit filed by the AAPS against the Texas Medical Board? Do you think national or state nursing associations should file law suits against state nursing boards on behalf of nurses? In your opinion when should a nursing professional association sue a state board of nursing? What's your opinion?

Did You get the Memo?

In an article called Nurse Police, published in Advance for Nurses, Nurse Attorney Taralynn Mackay stated:

The Boards of Nursing are getting busier every year and their regulatory powers are likewise increasing. It is crucial that nurses understand the seriousness of a board investigation. See http://nursing.advanceweb.com/editorial/search/aviewer.aspx?an=nw_07sep1_nngp31.html&AD=09-01-2007

My question, is why don't we as nurses understand the seriousness of regulatory and law enforcement investigations involving our nursing practice? Is something missing in our basic nursing education and training? Is this topic not being covered at nursing seminars, teleconferences, and conventions? Did we as nurses not receive the memo stating that your license is your livelihood and its your duty, job, and responsibility to protect your own license?

Did you get the memo? I admit, I didn't get the memo when I started and completed my nursing education. I didn't get the memo before I started working for a large teaching hospital where 80 of us nurses were told during orientation by the hospital risk managers that "you don't need your own professional liability insurance."  

Have you received the memo? When did you get the memo? If you haven't received the memo yet, review the posts on this blog and you will have an idea of what's in the memo. You have been officially "served."