Nursing Law & Order

Kentucky Nurse Indicted for Killing a Patient at a VA Hospital

See http://www.kentucky.com/medicine/story/967596.html.

Here is the indictment:  http://media.kentucky.com/smedia/2009/10/07/13/whittindictment.source.prod_affiliate.79.pdf

What Happens if you are named as a defendant in a nursing malpractice lawsuit?

Are you going to rely on the insurance coverage and legal assistance providing by your employer?

The answer would be yes for the majority of nurses. Being named as defendant in a nursing malpractice case is scary to say the least. What's even more scarier is that you could have your own policy with its own limits for just a hundred or so dollars a year for RNs and LPNs. Maybe a couple hundred for NPs and CNSs, depending on your state. Now for CRNAs and CNMs is several thousand dollars at least.

I have professional liability insurance for my nursing practice and consulting practice and a different policy for my law practice. Guess what if by chance I am sued, I don't want to worry about:

1. A civil judgment against me; Do you an extra $200,000 to 1 million dollars in the bank?

2. A lien on my real property or the seizure of my personal property (depends on the state);

3. My wages being garnished;

4. Having to pay for an attorney out of pocket to defend me; Do you have $20,000.00 for an evergreen retainer which will need to be replinished every 3-6 months throughout the litigation?;

5. Questioning the motives and strategy of my employer's attorney but having to play along because I can't afford my "own attorney"; etc.

This doesn't even account for the stress and emotional rollercoaster you are going to be on for a few years while your case winds or should I say grinds through the system. Paying a few hundred dollars or a few thousand dollars for your own policy may have brought you a piece of mind in the litigation that you WILL NOT have now.

What are the chances of you being named as a defendant in a nursing malpractice lawsuit? Don't know the odds and I like to gamble but I wouldn't risk it. One thing about insurance is you don't need it until you need it and when you need it, you REALLY need it. 

Maybe you trust your employer. I don't trust my employer and I am self-employed:)

I am working with nurses in these situations (who don't have insurance and who are named in a nursing malpractice case) and its a beast. I don't ask for much out of my nurse readers on this blog but one thing that I am asking is that you purchase your own professional liability insurance with a license defense protection benefit.  

License Defense Benefit in a Professional Liability Insurance Policy: Use It

I have spoke with at least 5 nurses this year who had their own professional liability insurance with a license defense benefit but did not contact the insurer after receiving Notice of a State Nursing Board Complaint.

This is a real benefit of the insurance policy because in my opinion you are more likely to have a complaint filed against your license with the State Nursing Board than you are to be named as defendant in a nursing malpractice case.  

Mandatory Vaccination of Nurses in Healthcare Facilities: Take the Stick or You are Fired?

The Washington State Nurses Association, whether you agree with the actions or not, is taking a stance and filing suit related to the mandatory vaccination of nurses. See   http://www.wsna.org/Documents/Injuction%20Against%20MultiCare%20-%20WSNA%20Press%20Release.pdf  

See also http://www.wsna.org  

Some nurses are being told either "get the vaccination or you will be fired."  What do you think? Do you think about mandatory vaccination? Are you going to be vaccinated? Do you think we will see more litigation in this area filed by State Nursing Association, Nursing Unions, or individual nurse plaintiffs?

Kentucky Board of Nursing and Indiana State Nursing Board: License Renewal Deadlines are Fast Approaching

If you are licensed to practice nursing in Kentucky and Indiana, don't forget to renew your license by October 31, 2009. I would suggest renewing now rather than waiting until a one or two days before the renewal deadline especially if you are making an affirmative response(s) on the renewal application.

Also please do not commit fraud and fail to disclose something that should be disclosed on your application. No, you won't be charged with a criminal "fraud" offense but it sure will feel like it if you fail to the disclose something that you should have disclosed to the State Nursing Board.

Not sure of whether or not you have to disclose and want to speak with someone:

1.  Need assistance with the Indiana State Nursing Board application, contact the Indiana State Nurses Association.

2. Need assistance with the Kentucky Board of Nursing application, contact Maureen Keenan, who is the Executive Director of the Kentucky Nurses Association.

3. You can also contact the nurse attorney referral hotline of the The American Association of Nurse Attorneys at www.taana.org for a referral to a nurse attorney who offers pro bono assistance (if any ) in either Kentucky or Indiana. 

National Council of State Boards of Nursing: Analysis of NURSYS Discipline from 1996-2006

See https://www.ncsbn.org/09_AnalysisofNursysData_Vol39_WEB.pdf 

10 Tips to Reduce Your Liability Risk As a Nurse

Welcome to the second installment of the Navigate Nursing Newsletter.  This issue examines the nursing litigation environment and offers tips to reduce risk exposure to prevent or minimize patient injury.  You'll also find the latest information on  nursing news, career tips, innovative products, and an online community to assist RNs create healthy work environments.  Create your customized plan today to navigate: Professional Success Patient Care Environments Personal Development

10 Tips to Reduce Your Liability Risks  Free Webinar October 27, 2009 at 2:00 pm (ET)   A new study of the nursing litigation environment found that while physicians bear the brunt of lawsuits, nurses are increasingly finding themselves defending the care they provide.  Examples of claims against nurses included: After an older adult falls, a nurse is sued for failing to change his care plan despite increasing problems with gait and behavior.  A nurse is sued for failing to note a patient's risk for skin breakdown and initiate appropriate preventive interventions.  Join Michael J. Loughran, Executive Vice President of Aon Affinity Insurance Services as he discusses the Nurse Liabilty Claims Study:  Implications for your Practice.  This 60-minute webinar will share strategies to reduce liability risks in your daily practice.   Register Now!   Sponsored by the Nurses Service Organization (NSO) and the Institute for Nursing Research and Education.  Improving Knowledge of Risk Management can Reduce Risk Exposure    Nurses play a critical role in delivering healthcare in a wide range of clinical settings, yet nursing practice carries inherent risks.  By knowing the areas within your daily practice that present the highest degree of risk exposure, you can act more effectively to prevent or minimize patient injury and financial loss.     AonAffinity's Nurses Service Organization (NSO) and CNA HealthPro released a new Nurse Claim Study that examines the overall nursing litigation environment and provides risk control recommendations.  read more.... NSO Outstanding Nurse Search Nurses Service Organization (NSO), a leading provider of porfessional liability insurance to nursing professionals, is launching the NSO Outstanding Nurse Search to share and reward the achievements and dedication of nursign professionals around the country.    Read more.....

For more useful tips to navigate your professional performance, patient care environment, and personal success explore our Navigate Nursing website.  There is a wealth of valuable resources created to help you create healthier and happier workplaces.     www.NavigateNursing.org

Legalities with Nursing Documentation and Legal Alphabet Soup for Nurses

I am presenting two 1.0 contact CE programs this weekend in Cincinnati, Ohio. Its only $20.00 to register to attend for a full day of CE.

See http://www.mullaneyrx.com/symposium2009.htm

DUI/OVI/DWI Update 2009: Drunk Driving, DUI Convictions, and Nurses

I am attending an OVI update this year again in Ohio. Its sponsored by the Ohio State Bar Association and has live simulcast in Fairfield, Ohio.

This will be my third DUI/OVI/DWI update this year. No, I am not a criminal defense attorney but as a license defense attorney, I am seeing more of these cases in my law practice which turn on a suitability for licensure depending on the State.

Also some counties are going "hard core" with DUIs and I spoke with a relative of a nurse who is currently incarcerated on a second DUI conviction where there was bodily injury. Nurses, if you have a DUI conviction and you want to know how it will impact your license if at all, contact a license defense attorney in your state or jurisdiction.

Its "not just a DUI" anymore (say 5 to 10 years ago) because personally I doing more consultations where there are multiple DUIs and/or a felony DUI at issue. Most DUI attorney or traffic law attorneys are specialists and therefore are not familiar with State Nursing Board discipline. Why would you expect your DUI attorney or criminal defense attorney to know about the Nurse Practice Act, nursing standards of practice, and history of State Nursing Board discipline in your state from the last several years anyway?

Don't get it twisted and assume "its just a DUI and its no big deal" because every other person you know has a DUI and it didn't impact their career, job, or certificate. You are special; you are not everyone else because you a licensed nurse with a code of ethics, legal rights, obligations, and duties, and you provide specialized and skilled nursing care to the public. Again don't get it twisted and if you do get it twisted, contact my office and we can help you straighten it out if you are licensed in Ohio, Kentucky, and/or Indiana.

A DUI MAY (I didn't say "will" baby because I don't give legal advice on this blog) have license implications for nurses depending on the state(s) where you are licensed to practice nursing, may have implications for your  employment (your employer may have a legitimate concern about patient safety and fitness for duty depending on the circumstances) , and your career.

2010 Unlicensed Nursing Assistive Personnel Conference in Chicago, Illinois: Save the Date

Download NNAAP_MACE_savethedate_2sided_forprint

Attending Face to Face Nursing Conferences: It This So Last Century or Is It Still the Gold Standard for Socialization into the Profession?

I don't know how many conferences you attend a year but I can tell you just this year, I have paid to attend 3 out of out state nursing conferences and attended 0. Things come up, usually related to my law practice and I can't get away and decide not to attend. I wanted to attend the Kentucky Nursing Board conference last Friday, but I was tired from driving to Columbus, Ohio for the Ohio Nursing Board meeting and I also had client appts. Friday afternoon. I am learning however and I did not pre-register for the KBN conference.

I am pushing 40 years of age, 38 years old to be precise and as a Gen Xer I am in the middle of the boomers who embraced face to face seminars, conventions, and professional association meetings as part of being socialized in the practice of a profession and Gen Yers and Mills who embrace technology like audioconferences, teleseminars, and webinars.

I want to have my cake and eat it too (or a brownie), so why can't associations do both.

I personally would love for more seminars, conventions, and professional associations meetings for nursing and the law to be available via audioconferences, live stream feeds, and webinars. Its not that I don't enjoy the face to face meetings and the networking but you tend to see the same folks at these meetings anyway. So is it really networking?

Also I realized years ago, the majority of nurses don't belong to professional associations therefore as a license defense attorney, the majority of my prospective clients won't be at these types of events anyway. I maintain my membership in ANA, the Center for American Nurses, and the Ohio Nurses Association to support the profession. But to pay my mortgage, I need clients and these potential or prospective clients are not at nursing professional association meetings.

I was contacted last week by a publication who wanted me to write an article for publication. I laughed (after I politely declined the request to write a 3,000 word article for $150.00). Don't get me wrong, I am published in national, state, and local journals and magazines but that's so last century for me as an attorney defending nurses before the State Nursing Board. I published to show yes I can years ago but I reach more nurses with my blog and the internet than I could ever hope to with a hard copy and snail mailed nursing publication. I am not an academic who needs to publish for tenure.  Now, ask me to write an article in an e-journal or e-magazine distributed to several hundred thousand nurses, pay me a little or nothing, and I will make the time.

I am also not an ambulance chaser as my hubby says when he sees those personal injury law office advertisements on TV. I can't imagine chasing ambulances anyway because I am very clumsy and I would fall and injure myself.  My grandparents have had multiple surgeries in the last year and I have a nephew with an ASD and pulmonary hypertension, so I am at several different hospitals in the Cincinnati area alot. My paternal grandfather is having major surgery this week, so LaTonia Denise Wright, RN, BSN, JD (as my hubby calls me when he is explaining something to me that should be obvious to me) will be at his bedside with her laptop and business cell phone. You as a nurse know all the __ that happens in a hospital; its like the Wild, Wild West in some of these facilities.

No, I don't slip my business card into the pocket of nurses and say "give me a call if you have an issue with the State Nursing Board." Haha, now that's funny. I do however keep business cards on my person at all times when I am in a hospital because you never know:)

Now back to face to face meetings. How many have you attended this year? Do you find the meetings to be cost prohibitive? I am personally questioning why so many nursing associations continue to have annual meetings, conventions, etc? Speaking of a meeting, the Ohio Nurses Association Convention is in two weeks in Independence, Ohio. I am running for office and a delegate for my district, so I am attending but I think I may drive up on Saturday or Sunday morning.

That's a busy week for me with Indiana State Nursing Board administrative law hearings in Indianapolis on Wednesday, Oct. 14th, the Center for American Nurses webinar on Competence, see https://m360.centerforamericannurses.org/event.aspx?eventID=11010  on Wednesday evening, client meetings in Louisville, Kentucky on Thursday the 15th from 10am to 5pm, and the Kentucky Nursing Board meeting in Louisville, KY on Friday the 16th.

What are the chances that I will drive to Independence, Ohio for the Ohio Nurses Association meeting on Saturday the 17th and/or Sunday, the 18th? I am learning because I have not pre-registered for the Convention and if I attend, I will pay at the door.

Maybe this is why nursing professional associations and professional associations in general are struggling for new members and new blood because the leadership is holding tight to last century marketing and membership drives instead of embracing the future.

What is the future? I don't know and I don't have the answers. I do have some ideas. But  I don't think paying hundreds of dollars to register for a conference, paying hundreds of dollars to fly or drive to a meeting, paying hundreds of dollars to stay in a hotel, and spending hundreds of dollars to maintain your membership in a professional or trade association is the future. But that's just me.

I

Board Contract, an Addendum to the Board Contract, and another Board contract or an Adjudication Order

What does this mean?

1. You have a Consent Agreement, Agreed Order, or Contract to resolve a complaint with the Nursing Board. This varies from State to State so we will call it a Board Contract.

Okay let's say you had 3 years of probation and monitoring. During the 1st year of probation and monitoring you were going through a nasty divorce and your spouse hits you, the police were called, and you both were arrested. You have to report the arrest to the Nursing Board because of the terms and conditions in your Board Contract that you signed.

2. You have an Addendum to the Board contract based on the DV (domestic violence) charge which was reduced to a simple assault. You agree with the Board to extend your probation by another year.

Okay now let's say you are continuing to practice at the Hospital and you are in your 3rd year of probation with the Board. You are getting excited because you may be able to apply for release from probation next year. You are now divorced and things are going well at work until you have a series of medication errors during one shift. One of the errors result in a patient death. The errors are related to you working 60-75 hours a week to pay your child support and support your new family; you are remarried.

3. Your license is automatically suspended because you failed to practice in accordance with safe standards of nursing practice. You will either take your case to a hearing, resolve the case with another contract with the Board, or apply for reinstatement pursuant to the terms previously agreed upon.

If you don't have legal counsel, you need it at this point. I am seeing Consent Agreements, Addendums, Agreed Orders, and Adjudication Orders with hearing transcripts that are the size of a phone book. I have to drink two cans of Pepsi to keep myself focused because there are so many documents cross-referenced. Okay, I am a drama queen and of course I am being dramatic, but you get my point!

___________________________________________

Does this seem unlikely? Actually its not and it can happen to anyone who practices as nurse. I am not saying its common because I think the majority of nurses have unrestriced and unencumbered licenses but a growing percentage have "action" against the license and a few of these nurses have multiple Agreed Orders, Consent Agreements, Settlement Agreements, Adjudication Orders, and Nursing Board contracts.

I am seeing this in my law practice in Ohio, Kentucky, and Indiana.

These cases are complicated because after a while the nurse becomes upset with the process and "being on probation", "jumping through hoops for reinstatement" for years and may give up. If this is you:

1. Stay on course;

2. Stay compliant with your Consent Agreement, Adjudication Order, Settlement Order, or Agreed Order; and

3. Stay healthy.   

Ninety Notices of Opportunity for a Hearing issued by the Ohio Nursing Board: It Is What It Is

The Ohio Nursing Board at its September 2009 meeting last week issued 90 Notices of Opportunity for a Hearing. 90 Notices, baby. This is a big deal; well its a big deal for someone like me who defends nurses, practices before the Board, and follows the legal regulation of nursing practice in Ohio. But I guess, as my mom likes to say, it is what it is.

Since I have been practicing before the Ohio Nursing Board, I can't recall that many Notices being issued at one Board meeting and I have been doing this since 2001. Ohio is a larger state but again we are not California or Texas large. Ohio has over 200,000 Board of Nursing licensees.

What is a Notice of Opportunity for a Hearing?

Its considered public action where the Ohio Nursing Board is proposing to take formal action against the license of a nurse or Board of Nursing licensee. The basis for the proposed action against the license is also listed in the Notice and the nurse has to formally request a hearing before the Board.

I attended the first day of the Ohio Board of Nursing meeting last week. It was noted that half of the nurses who have hearings have attorney representation and the other half represent themselves. 50% of the nurses who have a hearing before the Ohio Nursing Board represent themselves.

Are attorneys that expensive that nurses are undertaking representing themselves?

Or is it "I watch Law & Order, CSI, and Boston Legal, and I can handle this hearing before the State Nursing Board."

I am not speaking badly about nurses who represent themselves in a hearing because self-representation is a right in this country. But again its not just the actual representation that is so important, its the counseling and advising. You are going to represent yourself, okay fine. But you are also going to counsel and advise yourself as well on the career, workplace, employment, regulatory, and license implications of "action against the license." Get the ______ out of here!

This explains why I am receiving calls and inquiries from Ohio nurses who have Board Adjudication Orders that they don't understand, they disagree with, they don't know what is the next step, or they want to "appeal" 6-8 months after a hearing.

I use flat fees so you don't "save" any money by waiting to retain me after you have agreed to action against your license or after a hearing. Actually it may be more expensive because its in black and white what you have to do and  "it is what it is."

This is the attorney in me who recognizes that the practice of law while a profession is also a business: some nurses will hire me on the front end (which is what I prefer) or some nurses will hire me on the back end (after signing a Consent Agreement or after a Hearing to assist them with the license reinstatement or probationary period) and the money I am paid on either the front end or the back end spends the same at Walmart (I miss Circuit City because you could buy the new release DVDs for $14.99).

But the nurse in me would like for nurses to consider attorney representation, counseling, and advising at the first hint of a disciplinary investigation with the State Nursing Board to protect your license and your career.  But it is what it is!

How to Lose Your Nursing License? Here's My Top 10 Ways

Keep your head up Dave Letterman. You are not the first and you certainly won't be the last man who admits to  "doing the nasty" with a person other than your spouse while married:(

Losing your license can be temporary (suspension, non-permanent revocation) or permanent (permanent revocation). This isn't legal advice but here is my Top Ten Ways Nurses can lose their license:

1. Practicing as a Nurse and you have a chemical dependency or impairment and you are unsafe to practice;

2. Practicing as a Nurse and you have a mental illness or impairment and you are unsafe to practice;

3. Practicing as a Nurse and you have a physical impairment and you are unsafe to practice;

4. Tampering with medications;

5. Having sex with clients or patients or failing to establish and maintain boundaries with patients/clients;

6. Practice deficiencies, i.e. not having the knowledge, skills, or abilities to safely practice in your specialty;

7. Being convicted of certain crimes (felonies or misdemeanors) when you are nurse and whether this impacts your suitability for licensure;

8. Falsification or fraud on a renewal application or the endorsement application. This means you failed to disclose something you are were required to disclose;

9. Any type of Intentional, willful, gross negligence, or reckless conduct or inaction in the workplace that results in actual or perceived harm to the patient or resident; and

10. A criminal conviction which is directly related to your practice as a nurse or occurred during your nursing practice.

Indiana State Nursing Board Hearing and "Repping" Your Nursing License

Practicing law in Ohio, Kentucky, and Indiana before the Nursing Boards allows me to see how each Nursing Board functions related to disciplinary investigations and hearings. The Indiana State Nursing Board Meetings are devoted primarily to hearings which is different than Kentucky Nursing Board and the Ohio Nursing Board. I personally like how nurses are required to appear before the Indiana State Nursing Board related to suitability for licensure and that the full board conducts hearings.

I do however find that the majority of nurses appearing before the Indiana Nursing Board do so without legal representation, which is of course fine. There are pros and cons to representing yourself. Yes, you do save money and saving money is always good. But there are also cons. You are stabbing in the dark trying to figure out what to do, what should you say or not say, guessing how to do this and keep your license, etc.

There is a right to "rep" yourself in this country and I can understand the needs for cost-savings and not wanting to pay attorney fees and costs. So by all means continue to "rep" yourself.

http://www.urbandictionary.com/define.php?term=repping

I grew up in a predominately black neighborhood where you could and still can "rep" your hood, "rep" your block, or your "rep" your city. So why can't you "rep" your nursing license?

I must add however that we have had two nurses who went before the Indiana Nursing Board this summer without legal representation contact our office a few days before the date to file an appeal inquiring about an appeal and what could they do to keep their license at this point. You have got to be kidding me?  

If you are going to represent yourself throughout the disciplinary investigation, counsel and advise yourself throughout the disciplinary investigation, and represent, counsel, and advise yourself in the hearing, why not continue to do the same on appeal? Preparation for the filing of appeal should start prior to the hearing, not one or two days before the expiration of your appellate rights.

Do you know how much money it could cost to ready a file dropped in your lap two days prior to the deadline in a Nursing Board case? Most license defense attorneys are small firm or solo practice attorneys and this would require the attorney to drop "everything" and work on your appeal.

One nurse was quoted a fee of $20,000 by a Indianapolis small firm attorney to file an appeal on such short notice. The nurse wanted to know if I could take the case for $5,000.00. I declined.

It ain't gone happen in my firm because you are opening yourself up to mistakes because "time is of the essence" and you are behind the eight ball from the start. I don't practice law this way.

A large law firm could easily handle it and would probably charge you an initial retainer of $45,000.00 at least and then bill by hour deducting from the retainer to throw several attorneys and paralegal at your case to file your appeal on time. I referred her to an attorney who practices in Indianapolis in a large law firm who practices before the Indiana State Board.

What am I saying? If you think you need attorney representation in a licensure matter, don't wait until the last minute like a few days before a hearing or a day or two before your appeal runs dry and make an informed decision before you "rep" your nursing license before the State Nursing Board.