Nursing Law & Order

Ohio Board of Nursing FY 2007 Draft Report

If you practice nursing in Ohio, hold an active Ohio license, or plan to practice nursing in Ohio in the future, you should review the draft of the Ohio Board of Nrusing FY 2007 Report. Its available online at http://www.nursing.ohio.gov/PDFS/NextMeeting/M1/2.3DrftAnnualreport.pdf.

Depending on where you practice nursing, you should make it a point to review the FY Report's submitted by the Nursing Board. This information is usually available online and you can print it and review it about your leisure.

Why? To stay abreast of possible issues that may impact your nursing license and the professional practice of nursing in your state. I do the same for states where I hold a law license and I always find something interesting in the Reports.

Nursing Students and Criminal Convictions

I spoke with a prospective nursing student yesterday. She completed a year of nursing school. She was charged and convicted of Domestic Violence involving a minor (the situation occurred with her teenager daughter); its a misdemeanor, but its a M1. She was told by two different criminal defense attorney that Domestic Violence, M1 could not be expunged.

She wanted to know if she should continue her nursing education or consider another healthcare profession. I asked her if she would be willing to meet with me for a legal consultation given her situation however, she is strapped for cash.

All nursing students who have criminal convictions (misdemeanors and felonies) should consult with a nurse attorney (who practices before the Board of Nursing) before enrolling in and completing your nursing training. Nursing Instructors and Professors usually are not licensed attorneys and cannot provide a nursing student with legal advice and counseling on his/her options related to criminal convictions and licensure.

My sister recently completed her massage therapy training. The Ohio Medical Board application for licensure (massage therapists are regulated by the Medical Board in Ohio) asks detailed information not only about criminal charges and convictions but also about all cases where you were a defendant, this includes civil cases. This information was presented in her  class earlier this month. I had, of course, already discussed this with her at length seeing this is what I do for living.

Why not present this type of information in these programs at the beginning so that students can make an informed decision on whether or not to complete the training? Are these schools worried that students will not continue in the program and the school will lose money? Is it the duty and obligation of the student who has criminal convictions to seek out this information?

My sister mentioned that one women in her class started crying because she has multiple felony convictions and several other students expressed concern about their criminal convictions and the ability to obtain licensure.

I see this a lot with LPN training programs in Ohio. Its unfortunate and it turns my stomach. Are these schools acting in the best interest of students by delaying the presentation of this information? Should students actively seek out this type of information on their own? What do you think?

All Professional Liability Insurance Policies Are NOT Equal

Do you have your own professional liability insurance policy? The majority of nurses don't purchase their own policy for whatever reason.

If you do have the insurance, is it a good policy? Have you read the terms and conditions in the policy? Consider having the policy reviewed by an attorney who represents nurses in malpractice or licensure matters. Have the attorney explain the policy terms to you and what you are required to pay out-of-pocket in the event of claim.

Why? Because not all policies are made equal and you don't want to learn after the fact (after a complaint is filed against your license with the Board of Nursing or you were named a defendant in a civil lawsuit) that your policy isn't that great and that there are more "nurse-friendlier" policies on the market and available for purchase.

Three Reasons People Do Not Seek Legal Counsel

In the May 2007 issue of SUCCESS from Home (www.successfromhome.com), on page. 81 there is an article by Mark Brown, the Senior VP and Chief Marketing Officer of Pre-Paid Legal Services, Inc. titled "3 Reasons People Do Not Seek Legal Counsel." What are the 3 Reasons:

1. You Don't Know Where To Go For Help.

2. You are Intimidated by the Legal System.

3. You are Afraid of How Much it Will Cost.

How does this apply to nurses.

1. Nurses Don't Know Where To Go for Help.

The majority of clinical and professional practice decisions in nursing practice can have legal implications and consequences and nurses should seek legal advice and counseling when needed. Seeking legal advice and counseling doesn't mean you are hiring an attorney to sue someone contrary to popular belief.

You are a licensed professional. If you have legal questions its in your best interest to seek legal advice to safeguard your license and protect yourself. For help you should contact, The American Association of Nurse Attorneys (TAANA) at www.taana.org for a referral to a nurse attorney in your jurisdiction.

2. Nurses are Intimidated by the Legal System.

I can really believe this especially for nurses. Most nursing schools don't extensively cover the law, legalities, and legal issues in nursing. A one hour lecture for three weeks isn't enough. Also the courses are usually not taught by a nurse attorney with legal experience defending nurses and expertise in nursing law and regulations.

If you are involved in a legal matter that pertains to your nursing license or your nursing practice you can represent yourself, which is called pro se. The legal system can be confusing and its the role of your lawyer to assist you with navigating the legal process and procedures involved in your matter.

3. Nurses are Afraid of How Much it Will Cost.

Attorney fees and costs can be expensive. Attorney fees and the costs associated with representation vary. However any attorney that you consult with or retain should provide you with a Legal Services Agreement or Contract that lists the hourly fees, required retainer, and associated costs in addition to other language. You can inquire about payment arrangements on the amount due, financing options, etc.

Nurses who need legal assistance should contact an attorney that has experience in similiar matters and who has represented nurses and/or other licensed healthcare professionals.

ALL nurses should consider purchasing an individual professional liability insurance policy with a insurance company that issues policies to nurses and/or other licensed healthcare professionals. This insurance policy may cover the costs associated with defending you in a malpractice, negligence, and/or licensure matter. Its really unfortunate that the majority of nurses don't have this insurance and instead rely on the insurance coverage provided by an employer.

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. 

Is This Your Mother's ANA?

Incoming American Bar Association (ABA) President William Neukom reportedly sported a badge at a ABA conference proclaiming, "This isn't your father's ABA." See http://legalblogwatch.typepad.com/legal_blog_watch/2007/08/is-this-your-ab.html.

The ABA is the largest professional association in the world with over 400,000 members. The American Nurses Association could be the largest professional association in the world as there are nearly 3 million registered nurses in the U.S.

Why isn't the American Nurses Association the largest professional association in the world? Is it because the association operates as if its still your mother's or even grandmother's ANA? What are your thoughts? Do you belong to the ANA? If you don't belong to the ANA, what are your reasons? What would it take for you to join and support the ANA?

I am a member of the ANA and ABA. I will always be a member of the ANA and ABA not because I necessarily agree with each and every action taken by the associations but because I support in spirit what the organizations do for the profession in general.

Will It Anger to Board if I have an Attorney?

I am always puzzled when a nurse asks this particular question. A RN contacted me this week. She knows that a Board of Nursing complaint is forthcoming and she wanted to know her rights and responsibilities in the investigation. She asked if it will anger the Board of Nursing if she retains her own attorney to represent her before the Board.

I have a standard response to this question because I have been asked this question countless times since starting my own law practice in 2001. Board of Nursing disciplinary investigations are adverserial. When the Board of Nursing contacts you related to a complaint filed against you; its not a social call. The Board of Nursing has its attorneys (whether in-house legal staff or through the Attorney General's Office)to do the "business" of the Board, this may include prosecuting complaints.

Representation before the Board of Nursing is an important part of what your attorney will do. A larger part of the scope of representation should include counseling and advising you on the disciplinary investigation and process and the implications for your nursing career if action is proposed against your license.

At what point will the profession of nursing start educating its own about the law, legalities, and legal process involved in the professional practice of nursing? Disciplinary investigations are not a game and this isn't preschool where you should be concerned if "someone" is mad at you. You retain counsel because you need an experienced legal professional to guide you through the maze and discuss your options.

This question really underscores the lack of knowledge that most of us have as nurses regarding the legal regulation of nursing practice. I must admit I am a nurse, first and foremost, so please don't be mad at me if this post offends you. I am apologizing in advance and I am truly sorry. I sincerely hope I haven't angered you in anyway. 

Nurses Proceeding Without Legal Advice

I appeared with a nurse client yesterday before the Indiana Board of Nursing. What struck me after listening to the appearances for applicants for initial licensure and applicants for endorsement was not that the nurses didn't have legal counsel. That's no surprise because the majority of nurses involved in a licensure matter don't have legal representation.

What about at a minimum seeking legal counseling and advising even if you don't formally retain an attorney? What struck me was in a few cases the nurses or nursing school graduate did not even attempt to seek legal counseling or advise in regards to their particular situation whether it was disciplinary action (probation, suspension, or practice restrictions) in another state or the impact of criminal convictions. Two of the appearances (both nurses seeking licensure via endorsement) obviously didn't have a clue as to the impact of Board of Nursing action against a license in the state where you endorsing from. Several nurses had previously signed legal documents (Consent Agreements, Agreed Orders, etc.) allowing action against their license without understanding the implications of the legal documents.

Even if you decide not to formally retain an attorney to represent you, at least consider scheduling a legal consultation with an attorney to review the facts and circumstances surrounding YOUR situation. You can't obtain this type of advice from collegues or online nursing chat rooms. You want legal advice from an attorney with experience in nursing licensure matters. Have an attorney review ANY legal document that pertains to your nursing practice before you sign it whether its an employment contract, Consent Agreement, Agreed Order, etc.

As nurses we must start protecting ourselves and that includes knowing when to seek a legal consultation or assistance in a licensure matter. Your license is your livelihood and its YOUR job, role, and obligation to protect yourself. To find a nurse attorney in your area, see www.taana.org, the website for The American Association of Nurse Attorneys (TAANA).