My 2 Cents

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

 

Legal Seminar for Nursing Students

An article appears in the latest edition of the Journal of Nursing Law, which is the official publication of The American Association of Nurse Attorneys (TAANA). See www.taana.org. Its Journal of Nursing Law, Vol. 11, No. 4, 197-208.

The article is titled Current Legal Changes: Innovative Legal Seminar for Nursing Students. The article notes the exposure of nursing students to legal content is limited and suggests that schools and colleges of nurses offer a legal seminar for nursing students taught by a nurse attorney to fill in the knowledge gaps. What do you think? Good idea or Bad idea?

I like the article however I don't agree that the learning modules proposed are the most applicable to nurses. The article was co-authored by a hospital nurse attorney and this is obvious from the learning modules proposed:

1. Care of the Emanicipated Minor

2. Hospital Lawsuits

3. Nurse Malpractice and the Attorney

4. Liability of Nurse Managers

5. Physician Orders

6. Nursing Charting and Technology

7. End of Life Authorizations

Nursing care takes place in settings other than hospitals and as a nursing licensure defense attorney I would suggest and propose the following modules for nursing students:

1. Legal Regulation of Nursing Practice: Board of Nursing and Nursing Licensure Compact

2. Professional Regulation and Nursing Malpractice

3. Criminal Law 101 for Nurses

4. Employment Law 101 for Nurses

5. Nursing Documentation and the Medical Record

6. Pros and Cons of Professional Liability Insurance

7. Self-Regulation of Nursing Practice: Managing the Risks

What topics would you suggest for a nursing student legal seminar? Also this article illustrates in my opinion how nurse attorneys can have different and opposite perspectives on legal issues in nursing.

The client of a hospital nurse attorney is the HOSPITAL, not the individual nurse and the modules proposed above address HOSPITAL liability concerns more so while the modules I propose are centered around the individual nurse, not the place of employment. 

Ohio Litigation Involving a Student Nurse and a Nursing School

See http://www.sconet.state.oh.us/rod/docs/pdf/2/2008/2008-ohio-993.pdf.

The case is Potter v. RETS Tech Center Co., Inc., 2008-Ohio-993.

Nursing Student and Nursing Faculty Relations

I received a phone inquiry this week from a nursing student. The Nursing School/College is taking steps to expel the student from the program. This isn't the first of such calls I have received from nursing students who are being expelled from a nursing program for whatever reason.

Do you think nurse educators and nursing faculty are too tough on nursing students? Are programs designed to fail students? Are the policies and procedures used by nursing schools and colleges to grieve issues (attendance, exams, grades, practice issues, etc.) that occur with nursing students fair?

We have all heard about nursing eating its young. Does this ugly behavior start in nursing schools and colleges (faculty and educators to nursing students) and then continue into the practice environment (nurse to new nurse/former nursing student)?

State Boards of Nursing should devote more time to investigating nursing student complaints involving nursing schools/colleges and nursing faculty. This should be included in determining whether or not the school/college maintains its status with the State Board of Nursing.

Patients in the healthcare environment can turn to nursing administration to hold nurses accountable and also the State Board of Nursing. Nurse educators and faculty are practicing nurses also. Who can and should nursing students look to for holding nurse educators and faculty accountable? The nursing school or college.

The Ohio Board of Nursing allows nursing students and other interested parties to file complaints against a nursing school/college via a Nursing Education Dissatisfaction Form. See http://www.nursing.ohio.gov/PDFS/Forms/NrsgEdReportform.pdf. 

This particular student is over $50,000 in debt from her undergraduate nursing education and less than 10 weeks from completing the program. I didn't accumulate that kind of debt with nursing and law school combined.

I can't discuss the specifics but in my opinion this student is not being treated fairly. But again, fairness is in the eye of the beholder and in this case the Dean of the College.

We have all heard about the nursing faculty shortage and nursing shortage. Have you ever heard of a lawyer shortage? Okay, I made myself laugh with that one.

Is the environment in the nursing workplace (both for staff nurses and nursing faculty) the reason why there is a nursing shortage? A shortage in a field is indicative of something in my opinion. The shortage of nurse educators and nurses is indicative of "what" in your opinion?

 

M.S. in Nursing Anyone?

The Greater Cincinnati Health Council is sponsoring an informational session on Becoming a Nurse Educator, Your Second Career. It takes place on February 12, 2008 at the Scarlet Oaks Training Facility in Cincinnati, Ohio. See the attached brochure for additional information and to rsvp. Download Nurseeducatorcvg.pdf

Yours truly is planning to attend. Why? I always wanted to teach a course on nursing regulation and legal issues in nursing at a nursing college or school. I have also planned for sometime to pursue a M.S. in Nursing. Now wanting and planning and actually taking steps to matriculate are distinct matters.

To my knowledge, I am not planning to enroll in graduate school; its just an informational session. If I can earn a M.S. in Nursing without accumulating an additional student loan debt; I would consider it! Wouldn't You?

Legal CE for Nurses

I was going through my old files this week and discovered legal CE programs that I offered in 2002 and 2003 for nurses. I am applying for reapproval this month on at least 12 out of 15 of the CE programs.

What type of legal content would interest you? Let me know.

Legal Issues in Nursing Education

I am attending the Michigan League for Nursing conference in Detroit on Tuesday. Linda Christensen, R.N., M.S.N., J.D., who is the dean of Nursing for Clarkson College in Omaho, Nebraska and an attorney is speaking for a full day on legal issues in nursing education.

There are lots of legal issues in nursing education ranging from state board of nursing criteria for nursing education to providing student nurses with due process prior to expulsion from a program. I am looking forward the full day event.

Speaking of legal issues in nursing education, do you receive enough education in nursing school on the law, legalities, and legal issues associated with nursing practice?

LPN Student Nurses

I represented a poster at the Licensed Practical Nurse Association of Ohio (LPNAO) Student Convention this week. There were over 500 attendees at the convention. The students were excited about graduation and eager to start their nursing careers.

What is your opinion of practical nursing and LPN or LVN education?

Too Much Content

I attended the Ohio League for Nursing Spring Conference in Columbus, Ohio on Friday, March 24, 2006. The keynote speaker was Dr. M. Elaine Tagliarini, President-Elect of the National League for Nursing. Her keynote was intriguing and thought provoking. She stated the transformation of nursing practice requires a reconceptualization of nursing education and the current system of educating RNs is too content focused.

She asked "What is NOT being taught in nursing educational programs because there is TOO much content?" Educating nurses on the law, legalities, and legal process associated with clinical practice if you ask me.

I presented a poster at the conference entitled Dodging Legal Minefields in the Transition from Student Nurse to Clinical Nurse that in my opinion fit in rather nicely with the keynote. In my law practice I am seeing more graduates from "accelerated nursing programs" being reported to the Board of Nursing for unsafe practice. Are nurse educators so focused on graduating students, NCLEX scores, and the "nursing shortage" that schools and colleges are smashing content into semesters/quarters and not providing students with the opportunity to develop clinical judgment, critical thinking, and decision making skills?

In general nurses are not familiar with the legal foundations of clinical nursing practice and the different types of potential law and liability facing nurses. Why?

I ask this question in my CE presentations and I will ask it here. Whose role is it to educated nurses on the law, legalities, and legal process associated with clinical nursing practice?

Does it belong to nursing schools and colleges, nursing employers, nursing unions, nursing professional associations, and/or individual nurses who are of course accountability for his or her own individual nursing practice and any acts or lack of action therein?