Nursing Law & Order

Unconscionability and Board of Nursing Consent Agreements and Agreed Orders

This isn't a term I have used since my law school contracts class. Unconscionable means unreasonable, unfair, and unjust. See http://webster.com/cgi-bin/dictionary?va=unconscionability

I spoke with a nurse this week. She signed a legal document with a Board of Nursing resolving a complaint filed against her. Almost one year later the nurse wanted to know about her appellate rights in this case.

She had heard that contracts could be voided if the contract was one-sided, unfair, and signed by one of the parties to the contract under duress. Unconscionability is a legal term and can depending on state case law be used to nullify a contract. The contracts involved are typically commercial and retail contracts.

She was told by Board staff that the Contract had to be signed and returned within a few days to the Board's office. She was under significant financial strain already and didn't really want to retain an attorney at that point. Also she didn't know where to find an attorney who handles these types of cases and she didn't want to retain the wrong attorney.

The Consent Agreements and Agreed Orders that I have reviewed over the years and have standard language that 1. Informs the nurse of his/her right to legal counsel and 2. Has language stating the nurse knowingly and voluntarily agrees to the language therein.

My comment to her was that you NEVER sign a legal document (whether its a licensure, workplace, or criminal matter) when you don't agree with or understand ALL of the language and conditions in the document.

What do you think? Do you think that Boards of Nursing should give nurses at least 30 days to review and consider these documents?

In my opinion, thirty days would provide a nurse with ample time to consider the document, to have the document reviewed by an attorney, or to retain an attorney. It is unfair and an abuse of power to provide a nurse with this type of legal document on a Tuesday and inform the nurse that the document has to signed and returned to the Board by Friday or the Board will proceed with formal disciplinary action.

Several nurses have told me that they ask Board staff if they need to retain an attorney and Board staff reply "we can't tell you if you need an attorney." This is how Board staff should answer. Its not their role to advise you whether or not to retain legal counsel. Board staff are Board employees, who represent and speak for the Board. Remember this is an adverserial process. Its not the job of the Board staff to inform the nurse of his/her options related to the licensure matter or to explain the licensure and employment implications of signing the document to the nurse.

HINT: If you think you need an attorney, then you do. Have we as nurses become so accustomed to being submissive and following orders that we need someone else to tell us that we need an attorney? Please say it aint so!

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.

Hospital RN Indicted in a Drunk Driving Crash

A RN who works at Mercy Fairfield Hospital in Cincinnati, Ohio was indicted in a drunk driving crash in downtown Cincinnati earlier this month. One person was killed and another was critically injured in the crash. See the link to the article in the Cincinnati Enquirer at http://news.enquirer.com/apps/pbcs.dll/article?AID=/20070919/NEWS01/309190018/1056/COL02.

This is the second article ran by the Cincinnati Enquirer within the last week involving criminal charges and Cincinnati area registered nurses. An article appeared in Cincinnati Enquirer on Saturday, September 15th regarding an RN who was charged with diverting narcotics while wasting the medication with an Ohio Board of Pharmacy representative.

You are innocent until proven guilty in our Criminal Justice System. Therefore do you think newspapers should mention the profession or occupation of a defendant? Does this make the story more or less news worthy? Does the public have a right or interest in knowing this type of information?

Would You Surrender Your Nursing License?

Below is an email, I received from a nursing colleague this week. She gave me her permission to post this excerpts of this email redacting her name of course:

Hi I was reading your "just my two  cents" excerpts, and they just brought back all of the hated pent up feeling that I have been supressing for all these years. I was a nurse for over almost two and a half decades., and one fateful day all of my love for nursing, and all the deep pleasure I felt helping sick people get well was yanked from underneath me. A nursing manager of an intensive care unit, was presumably helping me with a patient and made a mistake. I reported the mistake to the charge nurse. But because I didnt chart the mistake on my nurses notes, I was reported to the doctor who in turn reported to the nursing director, who in turn reported me to the board of nursing. $25,000, heart related illnesses, stress, and elevated high blood pressure later, I placed my nursing license in an envelope and mailed it to the board, saying enough!!!!!!!!!!! No More!!!!!!!!!

I did not want any part of nursing any more. Myself and my family have never recovered from the financial loss. I will say to each and every nurse. BEWARE OF THE YOUR NURSING BOARD.  NURSING BOARDS ARE NOT NURSES' FRIENDS.

Please post my Email (without my name of course) on
your blog. The majority of nurses have an extremely nonchalant attitude
about Nursing Laws, Medication errors, and Documentation. I want them to
know, from my own painful experience, what could happen that could
change your entire life, and the life of your family who depend on you.
I want them to know that NURSING BOARDS are not on nurses side. Nursing Boards can be your worst nightmare.

Do you think that nurses have an extremely nonchalant attitude towards nursing law and regulations, medication errors, and documentation?

Over the past several years I have met a number of nurses who have surrended their nursing license because of disciplinary issues and/or Board imposed monitoring. Some of these nurses would say that the practice of nursing wasn't worth the stress related to "jumping through the hoops" i.e. psychiatric evals, chemical dependency evals, daily call in process for drug testing, Board imposed practice restrictions, etc.

Before you decide to voluntarily surrender your nursing license, consult with a licensure defense attorney to discuss your situation.

Its Nursing Convention Time!

Are you involved in a national, state, or local nursing association? If not, you should join a nursing association because its sole purpose is to advocate for the best interests of its membership. Join an association and attend a few meetings. You will be hooked.

I attended my first Ohio Nurses Association Convention in 2001. A few hundred nurses meeting for several days discussing issues that impact nursing. I love it! I attended the ONA Convention in 2003, 2005, and I will attend the 2007 Convention in Columbus, Ohio next month.

I am running for office again this year. I am running for ANA Delegate Unspecified (I have to run as unspecified because I am not a full-time clinical nurse) and Center for American Nurses Delegate. There is a full slate running for ANA Delegate Unspecified and Center for American Nurses Delegate offices again this year.

The American Association of Nurse Attorneys (TAANA) annual meeting is in November 2007. I am not sure if I am attending although I find the course offerings very interesting. The Conference is being held in Newport, Rhode Island and I can't imagine how much it will cost me to fly from Cincinnati, Ohio to Warwick, Rhode Island and then travel (rental car or shuttle bus) 40 minutes to the Hyatt Regency in Newport. Next year's conference will be in Lexington, Kentucky, which is an 75 minute drive from me here in Cincinnati.

I am waiting for an ANA, TAANA, or Center for American Nurses meeting to be held in Las Vegas, Nevada. I guess I will have to wait a little longer.....

Pretrial Criminal Diversion Programs and Nursing Licensure

I met with a nursing student this week about the licensure implications of a criminal diversion program. She is facing felony charges and will most likely enter a court initiated criminal diversion program.

A criminal diversion program like anything else has its pros and cons for a nurse or nursing student depending whether the matter is viewed from a criminal, employment, or licensure standpoint.

Before you consent to entry into a criminal diversion program for felony or misdemeanor charges, consult with a nursing licensure defense attorney in your state.  See for example http://www.co.hancock.oh.us/prosecutor/adultdiversion.htm.

DO NOT assume that a criminal diversion or pretrial diversion in a criminal case will not impact your license if you are RN or LPN or your application for licensure if you are a nursing student.

Ohio Nursing Independent Providers Have Options!!

Independent Providers (IPs) in Ohio can now join the Ohio Council for Home Care (OCHC) www.homecareohio.org. Governor Strickland via Executive Order provided Ohio Independent Providers with the right to organize and choose a collective bargaining agent. See the attached brochure. Download ipbrochure2.pdf

There are several thousand IPs (nurses, home health aides, etc.) in Ohio. For additional information about Ohio independent providers, click on the following link of the Ohio Home Care Program  http://www.ohiohcp.org/provider.html. 

TheSEIU is attempting to organize the Ohio IPs. The dues will mostly likely be several hundred dollars a year or a percentage of the IPs income.

What's the best option? Collective bargaining with the SEIU or joining the Ohio Council for Home Care, a trade association that has lobbyied on behalf of Ohio home care agencies and home care consumers for years? What services will the OCHC provide to Ohio IPs?

Do you think Ohio IPs should:

1. IPs should join the OCHC;

2. IPs should join the SEIU;

3. IPs should start their own trade association exclusively for IPs only;

4. IPs should start their own union for IPs only;

5. IPs should start their own combined union and trade association;

6. IP-RNs should join a combined union and professional association like the Ohio Nurses Association (see www.ohnurses.org);

7. IP-LPNs should join the Licensed Practical Nurses Association of Ohio (LPNAO) www.lpnao.org ; or

8. IP-LPNs and IP-RNs should form their own professional association; or

9. IP-LPNs and IP-RNs should form their own combined professional association and union similiar to the Ohio Nurses Association.

Although I am not an IP, I am a home care nurse. IP nurses have options. IP-RNs and IP-LPNs should seriously consider ALL the options including what's in their BEST INTEREST from a professional practice, clinical, financial, business, and legal standpoint when determining the best course of action in this situation.

Taking Control of Your Nursing Practice

An article, Malpractice Suits Against Nurses on the Rise, http://news.nurse.com/apps/pbcs.dll/article?AID=/20070827/CA09/308270004 advises nurses to assume control of their nursing practice. What do you think? Are we assuming control over our nursing practice? Or are we content allowing "others" to control our nursing practice?  

Anyone Can Give Legal Advice, Right?

I posted the information below on my website today. I feel strongly about this issue because I am finding that more and more student nurses and graduates of basic nursing school are relying on the informal advice of family, friends, and others when completing a state board of nursing Application for Licensure by Examination and for counseling and advice in licensure matters.

I belong to several nursing chat rooms and the chat room administrators have to warn nurses repeatedly not to seek legal advice or give legal advice on the site. One nurse in a chatroom questioned whether she really needed to hire an attorney, although an evidentiary hearing was scheduled in her licensure case for early October. Another nurse warned that attorneys require ethics related CLE (continuing legal education) for reason and to careful when retaining an attorney.

Why do we as nurses seek informal counseling and advice regarding licensure matters? Is it because of the lack of perceived value of a nursing license? Your license is your livelihood, so why do we as nurses continue to accept informal counsel and advise from various sources and only consider attorney representation, counseling, or advising as a last resort when ALL else has failed?

I value my law licenses and my nursing license. I wouldn't under any circumstances attempt to represent myself in an investigation of my law licenses or my nursing license, although of course I could represent myself. Why not you say and this is what I do for living? There are several reasons. 1. There is too much at stake. 2. I couldn't be objective and represent myself before the Ohio Board of Nursing; I am licensed as a RN only in Ohio. and 3. I am not sure I would like to have myself as a client.

Moreover there is a saying that an attorney who represents himself/herself has a fool for a client.

NCLEX-RN and NCLEX-PN Applicants
STUDENT NURSES, NURSING STUDENTS, and GRADUATES OF BASIC NURSING SCHOOL

Please Consider the following If a state board of nursing Application for Licensure by Examination requires you to make an affirmative disclosure of a criminal conviction(s), chemical dependency, mental illness, etc.

Consider consulting with a licensure defense attorney in your state before you submit your Application for Licensure by Examination to a state board of nursing.

DO NOT rely on the informal advice provided to you by friends, family, nurses, student nurses, nursing instructors/professors/faculty, and others when:

1. Determining whether or not to disclose information on the Application;
2. Considering how the state board of nursing will review your Application;
3. Analyzing the specific facts related to your situation; and
4. Evaluating your options for licensure.

This is the role of an attorney. YOU NEED LEGAL ADVICE FROM A LICENSED ATTORNEY in your state.

Consider obtaining legal advice and counseling (it can be in the form of a legal consultation) from a licensed attorney in your state who has experience in nursing licensure matters. Contact your state nurses association for a referral to an nursing licensure attorney (www.nursingworld.org) or contact The American Association of Nurse Attorneys (www.taana.org.)  You can then decide whether or not you need to retain an attorney to represent you before the state board of nursing in regards to your Application for Licensure by Examination. 

Compare the Treatment of an Ohio Educator vs. an Ohio Nurse in Child Welfare Criminal Investigations

I am not sure of whether you are familiar with the case of the Ohio Assistant Principal who left her two-year old child in a hot vehicle for over 7 hours and the child died of hyperthermia. It was documented that she left the 2 y/o child alone in the car on other occassions prior the day when the toddler died. See www.enquirer.com the Cincinnati Enquirer's website for additional information. The mother was not charged with a crime as the prosecutor in the case did not submit the case to the grand jury. This case is receiving alot of national and local coverage by the press and media. Will the Ohio Department of Education investigate and proposed to take action against her license?

A nurse in Ohio who worked a double shift was charged with child endangerment after her 2 and 3/y/o children were found wandering the street, unharmed. Will the Ohio Board of Nursing investigate and propose to take action against her license?

Below is summary from a posting on the Cincinnati Enquirer website today about the disparity in the two cases, one involving an educator (who managed not to forget the $59.00 worth of donuts in the car but left her child in the car) and the other involving a nurse (who worked a double shift):

Recently, a nurse and mother of two children age 2 and 3 was charged with two counts of child endangerment. She had fallen asleep after working a double shift and her two children were found (safely) walking three blocks from their home. In another incident, no charges were filed against an educator who left her daughter in her car after buying doughnuts for a teacher's meeting. Her daughter, tragically, died. One mother works a double shift, her children are alive and well, and she faces charges. Another mother buys doughnuts, her daughter dies and no charges are filed. Can anyone explain this logic to me? See http://news.enquirer.com/apps/pbcs.dll/article?AID=/20070906/EDIT01/709060328/-1/all.

Nursing Licensure in Multiple States

More and more nurses hold an individual nursing license (whether via endorsement or examination) in more than one state. A disciplinary investigation and proposed action against your license in State A may impact your license in State B at some point.

I live in Cincinnati, Ohio and I am fifteen minutes from the borders of Kentucky and Indiana. Although I have an Ohio nursing license, I hold a law license in Ohio, Kentucky, and Indiana. I practice law in all three states and have active cases in each state. Lots of nurses in this area have a nursing licensure in Ohio, Kentucky, and/or Indiana.

This is also true, I have found of nurses who live in Detroit, Michigan because of the proximity to Toledo, Ohio (and northern Ohio), nurses may hold a license in Michigan and/or Ohio. Nurses in Louisville, Kentucky may also be licensed in Indiana because of the short drive to the Indiana border. This is common in various parts of country for a variety of reasons whether it be geographical location, position related, etc.

If you hold a license in more than one state you really need to consider what impact a disciplinary investigation and/or Board of Nursing action against your license (whether through an Agreed Order, Board Order, Consent Agreement, etc.) will have in the State where the action was taken, other states where you hold a license, and on your nursing career.

I am speaking of individual state licensure because only one of the states where I practice nursing licensure defense (Kentucky) is a member of the Nursing Licensure Compact (NLC). See http://kbn.ky.gov/. Ohio and Indiana are not members of the NLC.

Do you hold a nursing license in more than one state? Are you currently practicing in more than one state? What do you think of the Nursing Licensure Compact? For additional information about the Compact, see the National Council of State Boards of Nursing website at www.ncsbn.org.

Also if you are practicing nursing in more than one state simultaneously and concurrently make sure you are keep the different nursing law and rules straight. I had a nurse contact me several years ago who was licensed in Kentucky and Indiana regarding a BON Complaint. She performed IV procedures that were allegedly outside the LPN Scope of Practice in the state where the facility was located. She confused her scope of practice in one state with the scope of practice of the other state because she routinely held nursing positions both states. This is common as many of us work part-time with one employer, part-time with another employer, and maybe prn at one or two other places. Don't let this happen to you.

READ Your Insurance Policies

I posted on this subject earlier this week that all professional liability insurance policies are not made equal. Well guess what?

I spoke with a nurse this week who just received notice a complaint was filed against her license with the Board of Nursing. She has professional liability insurance with an insurance company that writes a large number of policies for nurses.

She was told by the insurer that the policy only cover attorney fees and costs for a licensure defense HEARING! It does not cover attorney fees and costs during the investigative phase.  What a JOKE!

Depending on the particular State Board of Nursing and the Nurse Practice Act and Board of Nursing Regulations, cases are investigated and adjudicated differently. A case may not proceed to a hearing but this doesn't mean the nurse should not be afforded with attorney representation.

Nurses, READ your professional liability insurance policy. If you don't understand the language and conditions in the policy, consider setting up a legal consultation with a licensure defense attorney in State so that you know UP FRONT the limitations, terms, and conditions in your policy in the event you are named as defendant in a malpractice case or if the event a complaint is filed against your license with a regulatory board.

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.