My 2 Cents

Do Your Homework Before Selecting An Attorney

An article in the October 19, 2007 Cincinnati Business Enquirer's Law & Accounting Trends Advertising Supplement addresses attorney selection. The Better Business Bureau (BBB) suggests :

1. Hiring an attorney with expertise and experience in the area you need;

2. Hiring an attorney who will give you candid advice; and

3. Don't expect to receive good legal advice without paying for it and the cheapest price for legal services isn't always the best price.

If you need assistance with a criminal matter, hire an attorney with significant experience in criminal defense. If you have a workplace discrimination matter, hire an attorney with significant experience in employment law. If you have a licensure matter, hire an attorney with significant experience in administrative law and who has experience working with nurses and/or other licensed healthcare professionals.

This is Why Consulting with An Attorney in Licensure Matter is SO Important

This is an email I received from a nurse yesterday:

How long after a nursing violation do you have before you can appeal the decision? I was reported to the BON for an minor incident. I did not seek legal counsel at the time because I panicked.

Before you sign a Consent Agreement, Agreed Order, or any legal document that proposes to take action against your nursing license, you should have the document reviewed by a licensure defense attorney.

Complaints involving NCLEX Applicants

There were 3,705 complaints filed with the Ohio Board of Nursing in fiscal year 2007. See http://www.nursing.ohio.gov/PDFS/NextMeeting/M1/2.3DrftAnnualreport.pdf for a complete list. 

211 complaints involved criminal actions

706 complaints involved drugs/alcohol

214 complaints involved Endorsement Applications for Licensure

731 complaints involved NCLEX Applicants

762 complaints involved practice

398 complaints involved Renewal Applications

The second largest type of complaint involves NCLEX Applicants; 731 complaints involved NCLEX Applicants. These are nursing students who have graduated and are seeking initial licensure.

Nursing students who have criminal convictions and who are seeking licensure via examination should consider consulting with a licensure defense attorney before submitting their application. For a listing of licensure defense attorneys who belong to The American Association of Nurse Attorneys (TAANA) see www.taana.org. The attorney doesn't have to be a nurse attorney but should have some experience in nursing licensure defense matters.

Off hand, I know nurse attorneys who practice nursing licensure defense Illinois, Texas, Florida, Arizona, Nevada, California, Indiana, Ohio, Kentucky, Rhode Island, Maine, Maryland, Washington, D.C., and New Hampshire. If you need a referral, you can email me or call TAANA's 1-800 number.

In Ohio, there are a few attorneys whose law practice includes a significant number of nursing licensure defense cases. Most of these attorneys are concentrated in the Columbus, Ohio area.

The point I am trying to make is that you can find a nursing licensure attorney in your state. You may not be able to find a nursing licensure defense attorney in the yellow pages under "licensure defense" but you can find an attorney with the experience and skills that you need.

Proceeding "Pro Se" in a Board of Nursing Investigation

What is pro se? It means representing, counseling, and advising yourself, i.e. not having an attorney. You have the right to self-representation in our justice system; this includes representing yourself in any civil (for example as a plaintiff or defendant in a medical malpractice, nursing negligence, defamation, wrongful discharge claim, etc.), criminal (where you charged with violating a federal, state, or local law), and administrative (workers compensation, unemployment, licensure matters, etc) action.

You can hire an attorney to represent you in a Board of Nursing matter at any point in the investigative and adjudicative process. You can hire an attorney before the actual complaint is filed with the Board of Nursing if you know a complaint will be filed or you can wait until a month before a scheduled evidentiary hearing to retain an attorney.

I have noticed a trend in my law practice. Nurses are representing themselves before the Board of Nursing in disciplinary investigations and later seeking attorney representation if the matter isn't proceeding how the nurse assumed it would. This is RISKY behavior. Consider retaining an attorney at the BEGINNING of a disciplinary investigation related to a complaint filed against your nursing license.

You can retain an attorney at any time but why not do it in the beginning so that your attorney can properly represent, counsel, advise you in the matter from the beginning. 

Avoiding Malpractice Lawsuits

The American Nurse Today, which is the official publication of the American Nurses Association (ANA), in the Feb. 07 edition, Vol. 2, No. 2 has an article titled Avoiding Malpractice Lawsuits.

What steps have you incorporated into your nursing practice to avoid being named in a medical malpractice or nursing negligence lawsuit?

Also what steps have you incorporated into your nursing practice to avoid being reported to the state board of nursing for an alleged violation of the state nurse practice act and/or board of nursing regulations?

Additional January 2007 Inquiries

I would also like to add the following to the list of legal consultations and inquiries provided by my law firm in January 2007:

* Nurse terminated from a healthcare organization for an alleged breach of patient confidentiality and reported to the state board of nursing; and

*Nurse reported to the state board of nursing by a former employer for alleged scope of practice violation and documentation issues.

Malicious Criminal Prosecution of a RN

An article I wrote for the Journal of Nursing Administration's Healthcare Law, Ethics, and Regulation was published this month. The title of the article is A Hospital's Malicious Criminal Prosecution of a Registered Nurse: What is the Intended and Unintended Message? October-December 2006; Vol. 8, No. 4.

This article was based on an actual Ohio case where a Hospital terminated a R.N. for allegations of patient abuse, actively worked with the prosecutor's office to seek multiple indictments (the nurse wasn't indicted by the grand jury), challenged the nurse's unemployment benefits, and the nurse grieved her termination. A complaint was filed against the nurse with the Ohio Board of Nursing however no action was taken against her license.

The nurse sued the hospital and prevailed on her claim for malicious criminal prosecution. The article is a must read for nurses employed by healthcare organizations. This RN was a charge nurse and front-line nurse manager.

Contract for Ohio IPs

My consulting firm, the Healthcare Risk Aversion Group, LLC. starting January 1, 2007 will sell a Directing RN and LPN-IP Professional Services Contract for nurses providing services in the Ohio Home Care Program. I am excited about this new opportunity to provide individual nurses with the tools to safeguard their business interests and nursing license.

Thank you to Shasme Jones, an LPN-IP in Cincinnati, Ohio www.ohioip.net Wynne Simpkins, Executive Director, Licensed Practical Nurse Association of Ohio www.lpnao.org for their assistance.

I am offering either a face-to-face or phone consultation with the purchase of the Contract to review the provisions of the Contract and to answer professional practice questions.

Notice of Opportunity for a Hearing

I attended the Ohio Board of Nursing meeting last week in Columbus, Ohio on Friday, September 22, 2006. The Board issued a Notice of Opportunity for Hearing to a number of its licensees at the July 2006 Board meeting and some nurse failed to respond to the Notice and request a Hearing.

How can a licensed nurse fail to request a hearing and respond to a complaint and disciplinary investigation pending against his or her license? If you receive correspondence or phone calls from the Board of Nursing or any other state regulatory agency, don't just ignore the correspondence or phone calls.

Remembers its your license and you have to take steps to protect yourself and be your own advocate. At mininum contact a licensed attorney in your state/jurisdiction to discuss your situation.

Chemical Dependency

Do you suspect that a colleague has a chemical dependency? Do you have a chemical dependency?

Regardless of whether a nurse is diverting medication intended for patient use, stealing medication, or drinking excessively prior to and after shifts, the nurse needs help immediately. Do not wait until an incident happens and you are being investigated by your employer/agency, local law enforcement, and/or the board of nursing.

Contact a nurse attorney in your state or territory who practices before the board of nursing and discuss your options. You do have options and you want to make an informed decision on your next course of action.

Employment Contracts

Are you working under an employment contract? Did you have an attorney with experience and expertise with nursing and health law issues review your contract prior to signing?

A contract is a legal document expressing the rights and responsiblities of the parties to the agreement. Contract terms, clauses, and provisions are subject to negotiation therefore you shouldn't just sign a contract without a clear understanding of how the contract will impact you now and in the near future.

Healthcare employers may use employment agreements with ARNPs. Staffing agencies use employment agreements with agency nurses. The agreement may be fair or the agreement may be one-sided an favor the healthcare employer.

Are you working under an employment agreement? If so, has your experience been positive or negative?

Self-Employed Nurses

I received a phone call from a nurse who is involved in medical aesthetics and wanted to know his legal boundaries of practice.

Are you a self-employed nurses? If so, congratulations on the move to self-employment!!

As a self-employed nurse you may have practice concerns that arise and you may need legal counseling and advising. A state regulatory board (Nursing Board, Medical Board, Pharmacy Board, etc.) cannot provide you with legal advice related to your specific situation and individual factual scenario.

As a business owner, you may need assistance from an accountant for financial issues, from an insurance broker for the different types of insurance available, and from an attorney for legal representation, counseling, and advising.

Nursing professional associations including national, state, and specialty nursing associations can provide information and guidance to self-employed nurses however the associations generally do not provide legal advice, counseling, and representation. A few nursing professional associations offer workplace counseling and advising. This is not legal counseling and advising.

You can also network with other self-employed nurses in your specialty area to obtain information and ideas on how to resolve issues and problems that occur in practice. However keep in mind, for legal advise you must consult with and retain the services of a licensed attorney in your jurisdiction.

No one likes to pay money for professional services and there is always something else you would like to do with your money, right? I cringe when I visit with my accountant even though I have worked with him since 1999 and trust his financial advice and counseling. Paying for professional services is a cost of doing business when you are self-employed nurse.

What are your thoughts?

Advanced Practice Nurses

Would you expect APNs (nurse midwives, nurse practitioners, nurse anesthetist, and clinical nurse specialists) to be more or less knowledgable about nursing law than RNs without advanced education or training and LPNs?

What is your opinion?

Office of Inspector General

Have you heard of the Health & Human Services Office of Inspector General? The OIG, under a Congressional mandate, established a program to exclude individuals and entities affected by these various legal authorities, contained in sections 1128 and 1156 of the Social Security Act, and maintains a list of all currently excluded parties called the List of Excluded Individuals/Entities.

Bases for exclusion include convictions for program-related fraud (medicaid or medicare fraud) and patient abuse, licensing board actions (nursing board revokes or suspends a nursing license, etc.) and default on Health Education Assistance Loans. For additional information see the OIG website.

Why I am mentioning this today? I just had lunch with a nurse who was convicted several years ago of theft of drugs, a felony. His license was suspended by a Board of Nursing for a period of time. Now this nurse is being subjected to a mandatory five year exclusion from working in any healthcare facility in any capacity that receives federal funds (Medicaid, Medicare, and other federal healthcare programs). The most significant Federal health care programs are Medicare, Medicaid, Tricare and the Veterans programs.The exclusion is broad and comprehensive.

For example, as mentioned in an OIG Special Advisory Bulletin  the following services may subject a facility or contractor to liability: Services performed by excluded nurses, technicians or other excluded individuals who work for a hospital, nursing home, home health agency or physician practice, where such services are related to administrative duties, preparation of surgical trays or review of treatment plans if such services are reimbursed directly or indirectly (such as through a PPS or a bundled payment) by a Federal health care program, even if the individuals do not furnish direct care to Federal program beneficiaries. See this link.

Felonious conduct for nurses in the context of providing care or related to the provision of healthcare may have many consequences: criminal, employment, administrative (board of nursing), civil, and/or professional (if credentialed and/or certified in a nursing specialty).

Nurses if you have been indicted for a felony or misdemeanor, retain a competent criminal defense attorney for the criminal matter AND a competent administrative attorney with experience in healthcare and nursing issues to represent, counsel, and advise you on the licensure issues. Proceeding pro se (without an attorney) has benefits (no cost to you) and risks (you may not know what to expect). 

Don't have a rainy day legal fund? See my post on the benefit of purchasing an individual professional liability insurance policy with a licensure defense protection benefit. Also consider purchasing Legal Basics for Professional Nursing Practice; the legal monograph discusses OIG exclusions under the section on nurses as criminal defendants. See the Center for American Nurses website at www.centerforamericannurses.org to purchase. It costs $15.26 for ANA members and $16.95 for non-members.

Professional Boundaries

I am sure you have read the newspaper articles or heard the news reports related to Jennifer Hyatte, L.P.N. She is a Tennessee L.P.N. who helped her husband George Hyatte, a prisoner, escape from jail. He was serving a 35 year sentence for aggravated assault and aggravated robbery. A correctional officer was killed and allegedly shot by Mrs. Hyatte during the prison escape.

Mrs. Hyatte was terminated from her nursing position in the prison because of her relationship with the inmate. What happened here? ALL nurses, regardless of practice setting must recognize there are boundaries and limits in the professional nurse-client relationship. The nurse-client relationship is not a friendship; it is a professional relationship based on utilization of the nursing process. For additional information on professional boundaries see the National Council of State Boards of Nursing website at http://www.ncsbn.org.

What do you think?

Due Process

What does due process mean to you? What types of due process do you expect in the nursing workplace? Does the definition given of due process mean anything to you as a nurse?