Nursing Law & Order

Legal Duties vs. Moral and Ethical Obligations: The License is 24/7

IMHO, a test of character and integrity is rising above your legal obligations and duties and doing what is morally and ethically correct although you are not legally obligated to do so.

We live in a time where it is all about the law (this blog is Nursing Law & Order) because you can sue for just about anything these days. A kid gets slapped on the playground now it is suspension from school or expulsion, criminal charges, and a civil suit.

Nurses need to know the law and in particular the practical application of the State Nurse Practice Act and Board of Nursing regulations to everyday practice. This is just a starting point; the bare minimum is the legal. From the legal IMO you can then start to decipher the moral and ethical. In Nursing, the bare legal or barely legal is a matter of perspective.

I make a mighty but still muddled & merely middle class living (I am aspiring to be at the Rick James "I am rich bi$ch" level by my 105 birthday (I just turned 40 on Saturday, July 2nd)) because of "the legal", the gap somewhere between the Nurse Practice Act & Board regs and professional standards and practice and the application to nursing practice and "being" a state licensed nurse 24/7. 

24/7 requires thought and understanding and a big picture view.

24/7 means when you see your best friend throw a punch in the bar after the 6th round of beers you do not start swinging and fighting along side of her and the two of you "go out" like Thelma and Louise. http://en.wikipedia.org/wiki/Thelma_%26_Louise

24/7 means when you get pulled over for drunk driving and you are charged with a DUI, child endangerment, possession of drugs, concealed weapon, and possession of drug paraph., you recognize at some point in the process and actually say "this may be my a## with the BON."

24/7 is 24/7; you are a nurse 24/7. I just renewed by nursing license with the Ohio Nursing Board last week and although there is one person I would really really like to slap, I keep my hands to myself because I am a nurse 24/7 and as a RN (in the Big O only) & a license defense attorney (three states baby) I don't NEED or WANT a DV charge or conviction.

One of my girl friends was arguing with a stranger last month (about the price of gas, the Middle East, and how this impact politics in the US. Why?) when we met for Happy Hour (why are there so many angry folks drinking at Happy Hour anyway?) and I told her, "if you are fighting, I will wait in the car." I am also a lawyer 24/7 and lawyer discipline is another matter.

Every license has benefits and burdens. The benefit of a RN license is the income and career diversity afforded to RNs especially with advanced education or additional experience/expertise and certifications. You can literally write your own ticket in nursing; I am.

The burdens are the legal, ethical, and moral responsibilites, duties, obligations, and liabilities and cross the profession still carries from lack of an entry level to practice, being female dominated, collective bargaining, and from being fractured and operating in environments where nurses have little real control or power. It is always about the money, the power, and the ends & means and the profession still struggles with this and will continue to do so.     

On a Law & Order: SVU episode (I love Detective Stabler; he is nuts!!) one of the detectives commented about being a detective and a police officer and being the job 24/7. Police officers are socialized into this circle and we all have heard about the blue line. Where is this socialization in nursing? Are nursing schools churning out soooo many graduates that there is no time for socialization? Just pat your graduates on the head, give them a business card to a local bail bonds chop shop and an outdated copy of the ANA Code of Ethics, and then say "Go Be Somebody."

24/7. This is the responsibility, accountability, and potential liability that you assume when you get your State Board of Nursing issued RN or LPN license. This is what nursing profs need to tell students and what needs to be stressed to practicing LPNs, RNs, and APRNs.

Who role is it to say this anyway? After I complete my Jedi Knight training, I want to assume part of this role in the profession. Which brings me to my next blog post? Nurse, are you just living or are you living by a code and fulfilling your destiny like Darth Vader or Luke Skywalker?

It ain't all peachy or creamy (I want ice cream) in nursing; it is 24/7 with the license.

Why? Look at the State Nursing Board renewal applications questions. Are you a Misdemeanor Mama or the Felony Father? (I am sorry Mom. I had to say it. I am going to Bible Study this Thursday and early morning service on Sunday. One of my grandmother's reads this blog).

Misdemeanors are misdemeanors and a felony is a felony, whether you are on the job or off the job because you are the job when you can care for John Q. Public; you are a nurse 24/7.  

Alot vs. A lot: Constructive Criticism about Nursing Law & Order. What about allot?

When you blog alot and you have an extensive readership, you can expect alot criticism. You put yourself out there. I have no problem with alot of constructive criticism of Nursing Law & Order. It goes with the territory and I have a thick skin. For example, I know my alot blog posts throughout the years since I have blogged since 2006 have typos and grammatical errors. I used to run alot of my blog post through a spell check and grammar check software but when you wear multiple hats as a solo and you are trying to get the information out to nurses something has to give. When I post a blog post, I am not writing an article to a nursing journal and if I put the time into my blog posts that I put into reading, re-writing, and proofing a document, I would have may 85 blog perfect blog posts instead of 1100+ blog posts. Yes, I blog hard, baby. I blog alot.

However incorrect grammar and typos should not appear in any blog or in any publication especially one written by a lawyer. What is the solution for someone like me with a heavy case load who loves to blog but can't take 4 hours to draft and proof a blog post like a legal document? Tina, my VA.

I recently hired a virtual assistant to work with me on alot of administrative projects and tasks. My virtual assistant Tina will actually start with my most recent blog posts and work her way back, one hour each week, correcting alot grammar and typos in my blog posts. If you find something and you just feel the need to pass it along on the blog, send it to Tina at [email protected] with the Date and Name of the Blog Post and she will take care of it. Actually she may thank you, Lisa the NP for providing her with alot of additional tasks to bill. Make sure you include [RE: Nursing Law & Order Typo and Use of Alot]

Who is Lisa, the NP? She is a NP who sent me an email this evening about using alot (which is not a word) instead of a lot because use of alot instead of a lot is a Pet Peeve of hers. I like alot instead of a lot because that extra space is wearing down my thumb and  I am sure I have alot and/or a lot throughout my blog posts alot over the years as Lisa also noted. Although, Lisa noted I used alot more than a lot in alot of my blog post; she did not give me a percentage however of my use of alot as compared to alot vs. allot. Lisa, the NP, thank you for taking alot of your time with your review and thanks alot for the constructive criticism of my blog. You spent alot of time reviewing my blog and the only thing you commented on was my use of alot vs a alot; nothing about the content. Go figure!

I will make sure Tina corrects my use of alot in all not just alot of my blog posts from 2006-2011 starting with this one. I may also take a refresher course this year on the proper use, balance, and mixture of the King's English vs. Urban and Rural Slang in niche blogging. Thanks alot, Lisa. Thank you alot more, Tina.  

Can you review my Ohio Nursing Board Consent Agreement and discuss with me my options for free by phone? It will only take 25-60 minutes!

Everyone wants something "free" or at no-cost. I know I do sometimes.

Some attorneys offer free legal consultations. Its depends on the attorney, law firm, and the type of law practice the attorney has.

For example, a personal injury, wills and trust, or employment law attorney may use a free legal consultation as an opportunity to gain additional information from you verbally and in writing (with intake forms) about your case.

However even those attorneys that provide free consultations, I don't know if the consultation includes reviewing legal documents and counseling and advising you on how to proceed.

If a nurse has a pending State Nursing Board complaint in Ohio, Kentucky and/or Indiana, I usually take those calls without charging so I can obtain additional information. I guess you can say this is a service provided for free. If you have a pending complaint before the State Nursing Boards in Ohio, Kentucky, and/or Indiana, call our office, provide your contact information including email address and telephone number, and we will schedule a telephone appt. (at no cost), usually 10-20 minutes, for me to obtain additional information about your situation to see if I can assist you and I will quote you a fee for representation, counseling, and advising.

Compare and contrast speaking with a nurse initially by phone regarding a Ohio, Kentucky, and/or Indiana State Nursing Board matter to reviewing and analyzing a State Nursing Board legal document and then discussing this document with the nurse by phone or in-person.

I am sorry but I cannot review your:

a. Ohio Nursing Board Consent Agreement;

b. Ohio Board of Nursing Adjudication Order;

c.  Kentucky Board of Nursing Agreed Order;

d, Kentucky Board of Nursing Order;

e. Indiana Board of Nursing Order; and/or

f. State Nursing Board Alternative to Discipline Program Agreements, Contracts, or documents, and/or any other legal documents for free because:

1. Let's just get this one out of the way: I don't want to!;

2. If you have a State Board of Nursing legal document you want me to review, this usually indicates: you don't have an attorney and you have represented yourself (proceeded pro se) before the Board. This is significant whether or not you realize it.

This means some education and information is required to discuss how your case got to to this point and where it goes from this point forward and this takes time;

3. Honestly, do you work for free as a nurse for an hour or two out of every day? So, why do you expect a state licensed attorney who has carved a niche in nursing law to review your legal document and provide a service to you without charging for the service?

Just this week we had 10 nurses contact the firm regarding Ohio, Kentucky, and/or Indiana Nursing Board complaints, investigations, or evidentiary hearings. This doesn't even include the nurses who contacted the firm who are licensed in other states or who have a non-State Nursing Board issue (unemployment comp, workplace, credentialing, etc.)

I spoke with 5 out of the 10 already (no cost) and 5 of the nurses were instructed to schedule and pay for a legal consultation because the service requested involved reviewing a Board document. 4 out of 5 of those nurses have already paid for a legal consultation and the consultation was provided.  I don't mess around.

1 nurse said, why can't LaTonia review the Ohio Board of Nursing Consent Agreement and discuss my options with me at no cost. I guess I should thank the nurse for the comment because we wouldn't have todays post.

4. Attorneys provide services which involve like nurses and docs their knowledge, skills, and abilities. I don't expect services from any professional for free because I am a professional who expects to be compensated for the services I provide;

5. You can google nurse license defense attorney, license defense attorney, or nurse attorney to find an attorney who may be able to review your legal document and discuss your options with you at no cost. If you can obtain a service for free then by all means do so. See also www.taana.org.

6. Legal Consultations compensate me for my time in addition to my knowledge, skills, and abilities and provide risk management for my law practice. The consultation establishes a one-time transaction and documentation of our meeting. The nurse also receives value. Its a win-win; and  

7. I have an active case load so anytime spent giving away advice and counseling at no cost when I have nurses who retain and pay for my services isn't an effective use of my time and its not fair to the client who pay me to provide services.

What is a legal consultation? See http://www.nursing-jurisprudence.com/legalconsultations.html.

Oh and what were the legal documents I reviewed this week:

1. proposed Ohio Board of Nursing Consent Agreement;

2. Ohio Board of Nursing Adjudication Order;

3. Kentucky Board of Nursing Agreed Order; and

4. KARE for Nurses (Kentucky) and ISNAP (Indiana) Alternative to Discipline Programs for Substance Use agreements.

Double Fresh, Double Fun, Double Smooth: Two State Nursing Board Complaints in less than 6 months

This is why its so important to speak with an administrative law attorney when you have a pending complaint with the State Nursing Board. If you have a complaint filed against your license, speak with an attorney to review the allegations and your course of action. Research law firms and attorneys online and schedule an appt. with an attorney to further discuss your case. What is the benefit in waiting a few weeks or months to speak with attorney when a complaint is filed against your license?

I spoke with a nurse this week who has two pending State Nursing Board complaints against his license related to allegations of drug diversion and the State Nursing Board suspended his license (without a hearing as permitted to do so by law when a nurse is threat to public safety; this is an emergency measure) after the 2nd complaint was filed.

Pull the money out of the mattress because you are going to need it in these types of cases. Two State Nursing Board complaints ain't double fresh, double fun, or double smooth but it will cost you double money.

Shared Governance vs. Collective Bargaining vs. Employment Contracts vs. Nursing Staff Bylaws: Which is better IYO?

Is shared governance "the" model for nursing practice in the future? What do you think?

I personally think Nursing Staff Bylaws are the key, not shared governance, collective bargaining, individual employment contracts, and certainly not at-will employment which is where the majority of nurses are in the spectrum.

At-will employment is cold, harsh and arbitrary. HR and lower and middle nursing management wield "at-will employment" like a Young Jedi with a new lightsaber. http://en.wikipedia.org/wiki/Lightsaber.

Do you know how many nurses are terminated and then usually reported to the State Nursing Board? Alot. The number of State Nursing Board complaints across the county is increasing.

See http://www.nursetogether.com/tabid/102/itemid/889/Worried-About-a-Malpractice-Lawsuit-The-Board-of.aspx 

http://advocatefornurses.typepad.com/my2cents/2009/01/state-nursing-board-complaint-vs-nursing-negligencemalpractice-complaint.html 

 http://www.camorrison.com/.

See also http://www.leichterlaw.com/ld_license_defense.php.

 Its not nursing negligence or nursing malpractice you have to worry about, baby, its being reported to the State Nursing Board or suitability for licensure in you are applying for a license. This is one of the reasons why nurse license defense attorneys like myself are so busy.

One of my clients who is an excellent RN was terminated from her employment with an Indiana hospital after 20 years of solid employment. She was terminated to send a message to other nurses on the unit who have been there longer than most if not all of the nurse managers and nurse executives at the facility. She was also reported to the State Nursing Board. A two-fer, fired and reported which is more and more common these days.

Some (I didn't say all okay but some) nurses in positions of power (lower and middle nursing management) have "blood lust" similiar to newbie vampires, are worse than docs and lawyers (because we are and can be overly power and money hungry; I know I am), and certainly more manipulative and fem fatale with the passive-aggressive routine. Maybe this stems from nursing being primarily a women-dominated occupation. I went to see the new Twilight movie yesterday again, can you tell? What did you think of the newbie vampires?

I am attending a few webcasts on shared governance in nursing this summer to gain a broader perspective on the future of shared governance. Maybe I am wrong about shared governance but nursing staff bylaws that afford nurses the same rights and due process as physicians governed by medical staff bylaws IMO are the ideal for hospital-based nurses.

The Best Case Scenario isn't always a realistic option in the State Nursing Board complaint

Whenever or if you have a complaint filed against your license with a State Nursing Board you want the best case scenario which is for the Nursing Board to review the evidence and close the case file or issue a non-disciplinary letter of concern, advisory letter, or other non-public letter. This is the best case scenario.

The best case scenario isn't possible in some State Nursing Board complaints and as a license defense attorney I am discussing case strategy, defense, and the long-term goals for the representation which also includes short-term goals. In some cases, discipline is coming and its just a matter of how (Agreed to or via an evidentiary hearing) when.

The worst case scenario in a State Nursing Board case is permanent revocation of the license.

There is everything in between the best and worst case scenario in State Nursing Board investigations and adjudications. How do you know what's in store for you if you don't have someone assisting you with your case?

But sometimes, just sometimes, "it is what is" and if "it is what it is" in your case then you need a license defense attorney to be frank with you and discuss your options. My mother says this all time: "it is what it is." See No. 2 at http://www.urbandictionary.com/define.php?term=It+is+what+it+Is.

You want the "skinny" on your case not the buff and fluff. HIre a lawyer who will give you the skinny while trying to steer you towards the buff and fluff.

You don't need peers, colleagues, friends, and family rationalizing your behavior, action, or inaction and telling you "it will all work out in the end." Sometimes it doesn't "work out" in the end especially if you don't do what needs to be done in the beginning and/or the middle.

Are the allegations in your State Nursing Board complaint as complex as a John Grisham novel? Then here is your sign and you need a lawyer!!

I am seeing more new grads being reported to the State Nursing Board and complaints that are much more complex than 3-6 years ago.

Money is tight for most in this country now. I know alot of nurse license defense attorneys in Ohio, Kentucky, and Indiana and across the country and I don't know any attorneys who work for free or pro bono in these types of cases because the cases are long and tedious. Its administrative law and to be expected.

If you need to hire an attorney borrow the money from a friend, relative, or pull it from a retirement or savings account. Maybe you should postpone the family vacation which may be the last vacation if your license is restricted or revoked anyway because of your failure to appreciate the seriousness of the charges and allegations at hand.

We just paid an attorney to draft our estate plan. It costs money but its money well spent in the big scheme of things. So many nurses will say "I cannot afford an attorney" when the phrase should be "this is my license and my livelihood and I cannot afford not to have an attorney."

Complex and a fact pattern from a John Grisham book=attorney representation.

How do you know if your case is complex and complicated? Contact a license defense attorney. Any attorney who practices in the field should be able to give you the "skinny" on what you are facing when defending your license before the State Nursing Board.

Also if your case involves anything of the following you really need to speak with a nurse license defense attorney ASAP:

1. Substance Use and Abuse or Theft of Drugs. Anytime, I mean anytime you are stealing drugs you need a lawyer, NOW, and I mean like yesterday. Theft of drugs is a felony and this cases are long and resolve over an extended period of time; think years boo boo not days, weeks or months.

a. If you stole drugs from work and you are a nurse=retain a license defense attorney

b. If you deny stealing drugs from work and you are a nurse=retain a license defense attorney

c. I am trying to make a point here because I see so many nurses who have a substance use and abuse disorder repping themselves before the State Nursing Board, sometimes with success and alot of times with anger, frustration, and eventually leaving the profession. Spend the money and retain a lawyer. Nurses will drop several bands (that's slang for one thousand dollars) on a vacation, private school child, college for an adult child, or for a home remodel but will not in general make the same or similiar type of investment in themselves for legal representation, counseling, and advising which allows one to maintain the license, livelihood, and a career.

2. Prescription medication and suspected impairment;

3. NCLEX-RN or NCLEX-PN Applicant disclosing criminal, mental health, or substance abuse info to the State Nursing Board;

4. Misdemeanor or Felony Conviction(s) and License Renewal and Initial Application for Licensure;

a. If you are a LPN and working on your RN or if you are a RN and working on your APRN and you have a complaint pending against your license with the State Nursing Board, hire a lawyer.

5. You reportedly failed to establish and maintain professional boundaries with a client, patient, or family member;

6. Professional Sexual Misconduct;

7. Cognitive, Mental, or Behavior Impairment and Unsafe Nursing Practice Allegations;

8. Allegations of Falsfication, Destruction, or Tampering with Documentation or Falsification of a License Renewal Application;

9. You are licensed in several states by endorsement and you are facing investigation in one or more states;

10. You are a nurse practicing in Compact State and being investigated by another State Nursing Board outside of your Home State;

11. You test positive for a medication or drug and you don't have a script;

12. You allegedly practiced outside of your Scope of Practice. Scope of Practice allegations are serious and please don't blow these off;

13. You have prescriptive authority and you have prescribed outside of your legal boundaries;

a. If you are a APRN and you are reported to the State Nursing Board for anything, you need a lawyer. This includes CRNAs, CNMs, CNS, and NPs.

b. If you are a APRN, hire a lawyer because discipline can impact credentialing and privileging and has alot of consequences for your career that may not be readily apparent now.

14. Medical errors which result in patient harm or death;

15. Any action or inaction that results in patient harm or death;

16. You are being investigated by two or more State Nursing Boards or you hold licenses in several states;

17. You are charged with a felony or misdemeanor, you may plead to a lesser offense, and you don't know what it means for your license;

18. You are a dually licensed professional, meaning in addition to being a RN or LPN you are also a RT, OT, PT, MT, therapist, counselor, dentist, or you have independent provider. Action against one license impacts the other license so get an attorney involved in the beginning of the first investigation. For example if you are a RT and a RN. If you RT license is disciplined then this must be reported to the State Nursing Board and this starts another investigation.

19. You are being encouraged to "self-report" to the State Nursing Board by your employer or a former employer

20. You are a new nurse (0-3 years) and a complaint is filed against your license with the State Nursing Board.

Call my legal assistant Jaren directly at 513-328-8217 or contact my office at 888-571-1110 if you have an issue with the Ohio, Kentucky, and/or Indiana State Boards of Nursing.

Applying for a license by endorsement, self-disclosure, and State Nursing Board complaints

If you are moving to a new State, planning to work in a new State, or just thinking about obtaining a license in new State and you will have to disclose previous Board action, substance use and/or abuse, mental health, or other issues on the State Nursing Board Application for Licensure by Endorsement, talk to a license defense attorney in the State where you are applying for a license BEFORE you submit your application.

I had someone tell me this week "I don't have a few thousand dollars to pay an attorney to represent me before TWO State Nursing Boards." Okay and that is understandable. But guess what? You could have saved yourself some cash if you had a RISK MANAGEMENT type approach to managing the legal risks and potential liabilities presented in nursing practice and consulted with a license defense attorney or researched own your own your options before you submitted your application for licensure by endorsement.

I can understand the frustration and I can understand the anger as I tend to angry also on a daily basis about why the fresh coffee from my $19.95 coffee maker isn't hot enough. Why should I have to microwave my fresh coffee when I have an expectation that the coffee should be hot. Damn it why isn't my coffee hot enough! Maybe I should purchase a $29.95 coffee maker.  

I am a lawyer and I would never try to represent myself. I am always surprised even after 13 years of law practice how many nurses rep themselves before the State Nursing Board. Again, you can rep your hood, rep your block, rep your city, so why not rep your nursing license, right? http://advocatefornurses.typepad.com/my2cents/2009/10/indiana-nursing-board-hearing-and-repping-yourself-.html

Some nurses depending on the complexity of the case and if its a fairly minor violation can and do coast through without attorney representation and successfully resolve their case on their own. But I have to tell you most folks tend to see their cases as "minor" and rationalize the actions or conduct involved. Its human nature and that is why you have an attorney to assist you to point out the not so obvious.

But guess what? I am seeing more complex cases involving two or three State Nursing Boards, substance abuse and criminal convictions, prescription drug use and impairment at work, mental health isssues impacting the practice of nursing, multiple standard of care violations, Board of Nursing complaints and nursing negligence lawsuits, and my favorites: good old fashion professional boundaries and professional sexual misconduct and  falsification, fraud, destruction of documents, deceit, and deception.  An APRN licensed in Ohio, Kentucky, and Indiana contacted me this month about a licensure defense issue, I had to use my finger, toes, and a calculator to tabulate the fee.

So yes of course and by all means, continue to represent yourself. But if the defecation hits the ventilation in your State Nursing Board case don't yell, argue, swear, or be a "nasty Nancy" with 1. State Nursing Board staff or 2. the Nurse License Defense Attorney you contact because its your license, its your case, and you decided (whether you realize it or not) to represent, counsel, and advise yourself before the State Nursing Board without the assistance of an attorney.  

Stepping into Deep Dog DuDu as a RN: What you do personally may haunt you professionally as a RN in some states and jurisidictions!

I have a family member who is a RN/almost a RN who has stepped into some deep dog dudu in her personal life which will eventually impact her RN license or suitability to remain a RN here in Ohio. No, I will not handle her case but will refer it to one of my colleagues in Columbus, Ohio who practice nurse license defense.

I have three rules for my law practice:

1. Recognize red flag clients and refer out to other attorneys;

2. I don't represent child molesters or rapists before the State Nursing Board; and

3. I never, ever, ever, ever represent, counsel, or advise family members or friends on ANYTHING legal.

What is dudu? Its dog excrement. See http://www.urbandictionary.com/define.php?term=dudu

Remember the famous slogan about Las Vegas, what happens in Vegas stays in Vegas? http://www.visitlasvegas.com/vegas/index.jsp

What happens in your personal life as a nurse does not necessarily stay in your personal life when you are a state licensed professional in some states or jurisdictions! Maybe in California, but certainly not in Ohio, Kentucky, and/or Indiana where I practice law.

For example, I can name two people I would literally like to slap in the face right now. I am serious and I would like it be a nice open hand slap that sounds likes a clap not a backhand "pimp slap." http://www.urbandictionary.com/define.php?term=pimpslap

But what stops me from slapping those two people in the face are:

1. My RN license in Ohio;

2. My law license in Ohio;

3. My law license in Kentucky;

4. My law license in Indiana;

5. Its not hip to be arrested in your late thirties and I am 38 y/o;

6. I don't want a criminal conviction;

7. It would be personally and professionally humiliating for me as a license defense attorney to be involved in a criminal case, State Nursing Board investigation, and/or investigations of my law licenses;

8. I have learned to keep my hands to myself and to obey societal expectations for "normal" behavior;

9 I  learned early to play nice in the sandbox; http://www.mostlymatt.com/2009/04/29/some-people-dont-play-nice-in-the-sandbox/ and

10. Actions have consequences and some consequences negate the short term benefit and "feel good" moment of the actions. 

So RNs before you do something you know feels wrong or you know may be wrong, think about it? THINK. http://popup.lala.com/popup/360569449467838541

I was always told there is a thin line between love and hate  http://popup.lala.com/popup/360569449464818050 but someone please sing me a song about the thin line between right and wrong.  

So RNs before you do something you know or suspect is unprofessional, unethical, illegal, or just plain ornery, think about whether this action or inaction will have consequences for your nursing license, your nursing career, and your family.

Before you Voluntarily Surrender your nursing license, speak with a license defense attorney

I spoke with a nurse yesterday who voluntarily surrendered her RN license based on information provided in an online forum/board for nurses.

You cannot receive specific legal advice and counseling from an online forum, chatroom, or board for nurses. For specific advice about your situation speak with a licensed attorney who practices nursing license defense in your state or jurisdiction.

Online forums such as www.allnurses.com provide a wealth of information and are very much needed in this day and age of web 2.0. But there are limits and you should not rely on what you are being told by others in these types of forums/boards/chatrooms.

I actually had a client doubting and second-guessing the legal advice I provided to the client until it was CONFIRMED in an online chatroom/forum/board. WTF? I found it amusing but anyway.

Everyone has a different situation with the Nursing Board and no situation is exactly the same which is why it can be dangerous to rely on general advice, assumptions, and information provided in these online forums. These forums again are helpful but are not a substitute for the legal advice provided by a state-licensed nurse license defense attorney who practices before State Nursing Boards.

Lawyers are not the bad guys. A lawyer who knows the process and procedure with State Nursing Board cases can fbe your professional equivalent of a BFF when you are dealing with a State Nursing Board complaint.

Everyone wants something for free. I wish someone could have provided us with our new riding lawnmower with a cart and bagger for free and saved us $1700.00. But practically speaking if you want something from a professional or if you expect a service, item, or product, 9.9  times out of 10, there is a cost associated.

Before you voluntarily surrender your nursing license pay for a one-time consultation with a nursing license defense attorney or seek legal representation from a nurse license defense attorney.

Why? Because depending on your state or jurisdiction when you voluntarily surrender your license, that's it for you . No license, no more ability to practice nursing because a surrender is a surrender is surrender in some states or jurisdictions. Its permanent and it can't be changed six months later when you have a change of heart or two years later after your situation and outlook on your life, your career, and your mood has changed or improved.

A voluntary license surrender is a big deal and the decision to surrender should not be made based on information provided to you in an online nursing forum/board/chatroom.

Ohio Nurse who stole MSO4 from a Hospital eligible for Treatment in Lieu of Conviction

See State v. Knepper, 184 Ohio App.3d 416, 2009-Ohio-5159 at http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-5159.pdf

You can also download here. Download 2009-ohio-5159

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Addiction is disease and nurses who are indicted or using drugs in Ohio will be less likely to come forward for treatment if Treatment in Lieu of Conviction is not available for felony theft of drugs or illegal processing of drug documents criminal indictments and charges. This is a good decision for nurses struggling with addiction.

I had planned to add more of a discussion here but I have to watch what I say on this blog because I know there is at least one attorney in Kentucky in the license defense area who monitors this blog for information on how to represent, counsel and advise nurses. This Kentucky attorney reported a blog post to the Kentucky Bar Association when I mentioned that I knew a nurse who I suspected was practicing law without a license and advising nurses in Kentucky Nursing Board matters.

WTF. Get a life. Why are you monitoring my blog that closely anyway?  Also as a professional courtesy, attorney to attorney, you could have contacted me if you had concerns. No, you print the blog post and forward to the Kentucky Bar Association.

I don't know who you are and I don't care who are you, but you my friend are a Hater with a capital "H." 

FYI, if I wanted to report something to the Kentucky Bar Association, I know the telephone number for UPL complaints, pumpkin. Also I have my own attorney who advises me on legal ethics, thank you for very much.

How funny! Just a parting remark for the Kentucky attorney who drinks Hateraid in the morning and before bedtime. http://www.urbandictionary.com/define.php?term=hateraid

If you want to learn the ropes with nurse license defense, then do your marketing and advertising, speak/write, develop a business plan, and work your own cases. Stop monitoring my blog and don't hate on me or my law practice. 

http://s0.ilike.com/play#Nas:Hate+Me+Now:249117:m11811283

 

Health Law conference in Indianapolis today was nice but what about nursing?

I attended a full day health law conference sponsored by the Indiana State Bar Association today. It was a nice conference with alot of good content. However I wish there was a State Bar Association conference focusing on the law and the issues nurses and other healthcare professionals face in healthcare. Most of the content at the conference today focused of course on hospitals, healthcare systems, and physicians.

Legal issues facing physicians including fraud abuse, medical staff credentialing, disruptive practitioners, DEA licenses, reimbursement, third party payors, employment contracts, medical mapractice, tort reform, and federal and state regulatory issues are big money and high dollar for law firms who work with hospitals, healthcare systems, and physician groups.

Nurses and other licensed healthcare professionals and paraprofessionals are usually not the subject of these types of conferences sponsored by State Bar Associations. I actually attended today because one of my goals is to attend state specific CLE in Ohio, Kentucky, and Indiana focusing on health law or administrative law and there was a session on the basics of licensure defense for healthcare professionals in Indiana. I soon found out the rationale was because more physicians in Indiana are being reported to the Indiana Medical Board after an adverse finding by the medical malpractice panel in Indiana.

The ABA has an annual conference which focuses on legal issues facing physicians. I am still waiting for the ABA conference focusing on legal issues facing nurses and other licensed healthcare professionals. I may juggle my schedule to attend the American Association of Legal Nurse Consultants conference in Pittsburgh, PA because this of course will be legal and nursing-related content. I will also attend one of the NCSBN conferences this year because these conferences focus on the legal regulation of nursing practice. I will attend the Ohio State Bar Association administrative law conference in July this year because there is always good content on the legal regulation and licensing issues involving healthcare professionals.

Professional Associations are Struggling and Begging for Members: Why Do I remain a member of the ABA and the ANA?

Look at this video exclaiming the benefits of ABA membership to attorneys.

http://www.abanow.org/2010/02/new-dues-rates-aimed-at-attracting-solo-practioners/

Okay now review these comments from bloggers about the discounted dues from the ABA for solo attorneys like myself:

http://www.myshingle.com/2010/02/articles/myshingle-solo/who-loves-you-solos-dueling-videos-join-the-aba-v-what-you-dont-know-about-solo-practice-can-hurt-you/

http://buildasolopractice.solopracticeuniversity.com/2010/02/09/why-reducing-fees-and-putting-on-a-pretty-pink-dress-wont-bring-solos-back-to-the-aba/

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I am a member of the American Bar Association and the American Nurses Association and to be honest with you, I have seriously considered dropping my membership in both organizations in the last year. National professional associations go astray when the orgs start to dabble in politics and lobbying which then polarizes the actual and potential membership base. I think there is a need and a role for national professional associations but I think most professional associations are still stuck in the 60s/70s/80s governance models and still haven't figured out how to offer products and services vital to a diverse potential membership base 

I like the American Bar Association publications for law practice management. I am also a member of SOLOSEZ, a list serve sponsored by the ABA for solo practice attorneys. This is why I continue to pay for ABA dues. I am not active in the ABA and will never be active in the ABA unless it forms a "healthcare license defense section or committee."

I do belong to the Ohio State Bar Association, which in my opinion is a keeper because of the products I receive for my membership dues. I joined the Indiana State Bar Association because it was cheaper for me to attend a health law conference next week as a member of the ISBA. I don't belong to the Cincinnati Bar Association.

I continue my membership in the American Nurses Association because I want to be a member of my state nurses association, the Ohio Nurses Association and my district nurses association, Southwestern Ohio Nurses Association and the Center for American Nurses.  I don't agree with some of what goes on at ONA but I support the organization nonetheless because its "on the job" with respect to legislative and regulatory issues in Ohio involving nurses with Jan Lanier, RN, JD and the new legislative specialist, the CE approval unit ran by Zandra Ohri is top notch, Kathy Morris is doing her "thang" with respect to counseling nurses on practice issues across the state, and the labor relations specialist work their tails off with respect to the collective bargaining agreements. I think the organizing unit is still in its infancy however.

When ONA allows its members to belong to ONA or the ONA/ANA, I will be a member of ONA only and drop my ANA membership. I am still disgusted with how the ANA Board handled the issues with the Center and the UAN. You need a graph, pie chart, opinion letters, daily emails, and legal briefs to keep up with the mess now. 

The ABA membership rolls are decreasing but the ABA still remains the largest professional association in the world I believe with almost 500,000 members and alot of those are law students and associate members. The ANA full membership depending on the outcome of various lawsuits is low (I think its between 50,000-120,000) especially when you consider there are 3 million RNs in this country.

These national professional associations are not changing with the times and appear to be out of touch. Yes, you can say "professional association membership is down across the board" but why? Its more than just economics because if I really value something I am going to find the money to pay for it. I am not a Gen Yer, meaning I want it now but I am a Gen Xer, meaning I do want things my way.

For example, I will keep my Direct TV because of Law & Order, Intervention, Hoarders, the Closer, and other shows that I watch. I pay a premium for Verizon Wireless PDA service and laptop internet access anywhere in the country. Did you see Intervention this week? I was in tears.

I also continue my membership in The American Association of Nurse Attorneys (TAANA) because it contributes to my bottom line with Nursing Service Organization (NSO) referrals for nurse license defense work and I receive referrals from TAANA from nurses seekings attorney representation before the Ohio, Kentucky, and Indiana Nursing Boards. Tens of thousands of dollars in fees vs. a $200 membership. I am in like Flynn and I value my membership in TAANA because it contributes to my bottom line. I write the check to TAANA the same day I receive my membership invoice.

What does the ABA and the ANA need to do become this relevant to the majority of the profession?

What do other national, state, and specialty nursing associations need to do become this relevant to the majority of the profession?

Nursing Union Reps Giving Legal Advice: Everyone and their Momma wants to be a lawyer. That's fine, but graduate from a law school and pass a bar exam first, please!

Nursing union reps when a situation occurs in the workplace give nurses advice and counseling on how to proceed based on the collective bargaining agreement. IMHO there is a thin line between giving legal advice and counseling and instructing a nurse how to proceed under a collective bargaining agreement in a workplace situation or incident. But that's just me. Maybe I am paranoid because instead of  "I see dead people", I see people practicing law without a license.  http://en.wikipedia.org/wiki/The_Sixth_Sense

I am working with a nurse who was given very bad advice by a nursing union representative (who is not an attorney of course) at a hospital and this advice will have workplace, employment, and licensure implications for the nurse. The nurse is very upset because she trusted her union rep. She has also tried to contact the union president repeatedly and has not received a return phone call.

The practice of nursing in healthcare which is one of the most highly regulated fields is becoming more complex with the interplay of civil, criminal, administrative, licensure, professional practice, clinical, credentialing, malpractice, employment, labor, collective bargaining, and workplace issues.

Nurses there is no substitute for legal advice from an attorney and in my opinion, nursing unions should hire an attorney (law school graduate who is licensed to practice law in the state) to work with the local unions, union officers and representatives in a particular facility to make sure nurses are being counseled and advised properly pursuant to the collective bargaining agreement during the grievance process.

For example, the Ohio Nurses Association has Labor Relations Specialists who are licensed attorneys who are very involved with working with union officers and representatives in the collective bargaining and grievance process. The attorneys don't represent the individual nurse, the attorneys represent the union in the grievance process but its still solid counseling and advising for the nurse related to the workplace issue. The Labor Relation Specialist can then say "hey you might need to speak with your own attorney about this or that." This nurse is not being represented by the Ohio Nurses Association union because honestly if she was the situation would have been handled properly.  

Just my two cents but nursing unions are fighting to organize nurses and doing cartwheels explaining the benefits of union representation in the nursing workplace. That's fine and dandy and peachy and creamy but hire attorneys and assign attorneys to work with and counsel and advise the local unit officers and reps who then work with the individuals nurses in a specific hospital, nursing home, home care agency, etc.

Yes it costs money to hire licensed attorneys and yes it can be expensive but this is why nurses are paying union dues right? If you are going to administer a collective bargaining agreement and you purport to represent the nurses in a given workplace pursuant to a collective bargaining agreement, then hire the attorneys you need to perform the triage on the frontlines in the battlefield.

"On the Edge" vs. Complex: State Nursing Board Complaints, Investigations, Adjudications, and Post-Monitoring

This is February 1st and January 2010 has been a busy one.

State Nursing Board complaints, investigations, adjudications, alternative to discipline program cases, post-discipline reinstatement and monitoring cases are becoming more complex. I am seeing more cases where it involves more than one State Nursing Board and multiple complicated issues and fact patterns. I love my job!!!!

There is a difference between complex vs. on the edge. There are some cases that are just "on the edge" and you know these cases.

I remember when I worked in a law firm and a very wealthy physician retained the firm to represent him in a complicated matter. The case was a priority case. It was a complicated case involving licensure, employment, state and federal regulatory, medical malpractice, credentialing, contract, and possible criminal issues. After the 3 hour meeting with the physician ended, the senior attorney responsible for the case said to the team of attorneys in the conference room (after the physician and his team left of course),  "I am getting to old for this shit." This was an "on the edge case" and you needed a chain saw to cut the smog from the cigarettes, perspiration, and tension in the room.

I am still young baby, turning 3 to the 9 this July and I am not "too old." I think of this attorney's remark and the grim look on his face and the time and effort we as team needed to "work" that case and I smile. This was ten years ago and these types of cases are cropping up in nursing with more frequency. Why?

I don't like practicing law "on the edge" or "living on the edge" or doing anything "on the edge" because I am scared of heights. But I have several "on the edge" cases and we take a more systematic approach to bring our clients and the case "off the edge" because its not healthy for the nurse or for us. It takes time and alot of effort but we have alot of success.

If you have an "on the edge" case, I will tell you so and I will charge you accordingly or refer you to another license defense attorney with no hesitation. If you are seeking someone to help you and assist you in your case, guide you through this long process, and you are willing to work just as hard as we are to get a handle on the issues and the drama, then this is the first step in turning an "on the edge" case into a complex case. I have no problem with complex cases because complex State Nursing Board cases are becoming the norm anyway. But maybe that's just my law practice:)

State Nursing Board Hearing: Want Representation? Don't wait until 11:45am to hire an attorney for a hearing at 12noon!

If you are scheduled to appear before the State Nursing Board or if you have a hearing scheduled before the State Nursing Board and if you are seeking attorney representation, counseling, and advising, contact an attorney ASAP.

One nurse contacted me two days before a State Nursing Board appearance in one state and the morning before a Board conference to discuss a Cease & Desist Order. I was available to represent the nurse and fee I quoted was naturally expensive.

Another contacted me one week before a scheduled hearing and another has contacted me two weeks prior to a hearing. Better late than never some would say, right?

In a perfect world, there would be no State Nursing Board complaints or nurses would be appointed an attorney for representation before the State Nursing Board. But this isn't a perfect world as we all know.

Retaining an attorney at the last minute is more expensive and your case may not receive the time and attention it should have prior to the scheduled hearing. This isn't Law & Order (okay its Nursing Law & Order)  where one can prepare for a hearing in 5 minutes. There is a laundry list of pre-hearing motions and discovery that should take place and may not take place if you retain an attorney at the last minute.

The fee quoted by an attorney may be double or triple what you would have normally paid because of scheduling conflicts and last minute preparation for the hearing in the event a continuance isn't granted. Yes, that's right a request for a continuance may be denied for a variety of reasons. You are not gaining any type of edge or tactical advantage (in my opinion) by waiting until the week of or the month of a hearing and hiring an attorney. For some  nurses it takes time to obtain the retainer fees to hire an attorney and this may be the reason why an attorney is retained right before a hearing. BUT if at all possible don't wait until 11:45 am to hire an attorney for a hearing at 12noon.

Ups and Downs of Law Practice on a Wednesday: Client Moments

Yesterday was an emotional day for me in my law practice.  A client who I have been working with for four plus years who is struggling with alcoholism is being permitted to return to nursing practice after meeting the terms/conditions for reinstatement of her license which included several months of clean UDS (urine drug screens).  I almost cried because my client has struggled with a variety of issues over the years not just with the State Nursing Board. His/her case isn't nearly over but we hit a positive milestone. The nurse is about to start practicing again, the nurse is in a steady relationship, the nurse is sober and working a solid recovery program, and the nurse is expecting a nice income tax refund next week. The nurse is happy and her attorney is happy for him/her.

I also found out that a client has been lying to me consistently for 2 months. Not just a little small lie but a several large ones. Its not a shocker that clients lie to their attorneys but it still pains me because I am representing, counseling, and advising nurses based on the information provided and uncovered during the case. I remind myself its a professional relationship and its the license and case of the nurse; the case or the license doesn't belong to the attorney representing the nurse. Then I take a deep breath and remind myself why I do nurse license defense cases.

When you are an attorney you come to expect that clients, some anyway may not tell you the truth. What is the truth? My grandmother always told me there are 3 versions of the truth yours, mine, and what's left in the middle. As an attorney, I need the facts, not what you want to occur, what you wished you had done, or what you might have done in hindsight. Just the facts, baby.

Here are two actual provisions in my legal services agreement which address honest and forthright communication:

A.   The attorney-client relationship is built on mutual respect and trust. Client shall be honest, upfront and forthright with Attorney. Communications between attorney and client are privileged and you are encouraged to be honest and provide attorney with an accurate representation of the facts and speak openly and candidly with Attorney even if this means you are disclosing potentially embarrassing information.

 

B.   Attorney cannot provide Client with adequate and concise legal counseling and advising if Client lies, misrepresents the facts, or engages in deceit and deception with Attorney related to the case. Attorney will withdraw from representation if Client engages in conduct adverse to the attorney-client relationship.

 

 That's right, I will, can, and have fired nurse clients for lying to me about important facts and information in a license defense case.

 

I am waiting to have my moment, when I am sitting in a conference room with a

client or a prosective client and  I say tell me why you were terminated and reported to the 

State Nursing Board by Always Happy and Heavenly Home & Hospice Care and the nurse tells me "You can't handle the TRUTH."

 

http://www.youtube.com/watch?v=8hGvQtumNAY

 

 

 

I have said it before many times on this blog. If you are going to engage in deceit, deception, and dishonesty, don't do it with your lawyer in a State Nursing Board defense or license case. I am  sure you have alot of friends, family members, and  peers you can lie to and keep a straight face about your legal matter. Be honest with your attorney  because its your case, your license, your  career, and your livelihood at stake.

 

http://advocatefornurses.typepad.com/my2cents/2009/07/dishonesty-deceit-and-deception-my-name-is-a-i-am-a-nurse-and-i-am-a-liar-.html

 

 

 

 

The AANA has got it going on with respect to Peer Assistance and CRNAs

The AANA is doing its thing!!! The American Association of Nurse Anesthetists (AANA) has taken the lead in nursing with assisting its members and the CRNA community with addiction, treatment, and recovery. See http://www.aana.com/peerassist.aspx. This organization is light years ahead of other nursing professional associations in so many ways its scary. Not only peer assistance but wellness also.

AANA has an active peer assistance program nationally and peer assistance advisors in all or most of the 50 states. http://webapps.aana.com/Peer/directory.asp

AANA even has a peer assistance hotline.  AANA Peer Assistance Hotline 800/654-5167

My legal assistant Jack is a volunteer peer assistance advisor here in Ohio http://osana.org/  and therefore I know first hand the wonderful things this program is doing for CRNA and Student Nurse Anesthetists. Jack is a former CRNA who surrended his Ohio license because of his addiction over a decade ago.

Why hasn't other national nursing professional associations stepped up like the AANA has for its members with addiction, treatment, and recovery? Is addiction, treatment, and recovery only an issue with CRNAs? Of course not so why haven't other national and specialty nursing associations stepped up to assist the profession? Where is the voice of these national nursing unions with respect to addiction, treatment, and recovery in nursing?

The majority of CRNAs in the US belong to the AANA while the majority of the 3 million RNs in the US don't belong to a national, specialty, or state nursing association or a nursing union. I wonder why? Stop the in-fighting and go grassroots with a issue like this which hits close to home. Maybe just maybe your membership numbers will increase :)

I have alot of cases (actually a large percentages of my cases) that involve allegations of abuse, impairment, and medication discrepancies in my law practice. We work very closely with our clients who are in recovery and it is a process. State Nursing Board complaints, suspensions, alternative to discipline programs, probation and monitoring, employment, return to work issues, criminal charges, criminal probation, etc. A long and complex process that we enjoy performing because there is a light at the end of the tunnel and its not a train!

I would like to see a national nurses association or a national union which both purport to represent the profession step up the plate and do for RNs nationally and on the state level what AANA does for CRNAs with respect to addiction, treatment, and recovery. I am willing to roll up my sleeves and become a super volunteer to assist with this type of endeavor. I can dream, right?

I Just Signed the State Nursing Board Consent Agreement, Contract, or Agreed Order that was put before me!

I have been told this several times this month. Before you sign any legal document, contract, order, or agreement relating to your nursing practice, read it and ask questions at a minimum. You don't just sign a legal document and hope for the best.

Would you sign a mortgage loan documents and not ask questions? Oh crap, not a good question as alot of us American did just that and look at the results.

If you have been presented with a legal document, contract, order, or agreement related to your nursing license or your nursing practice, read the document. Then read the document again and start asking questions. Even if you don't have the document reviewed by an attorney, that's fine but read the document so that you have an understanding of what you are admitting to, agreeing with, and what are the expectations of each party to the agreement, contract, order, or document.

I have spoke with three nurses this month who each questioned if permanent practice restrictions in an Ohio Board of Nursing Consent Agreement or an Ohio Board of Nursing Adjudication Order can be modified.

As an attorney, I like to play with the meaning of words but here is the plain English version of what permanent means. http://www.merriam-webster.com/dictionary/permanent.

Permanent practice restrictions with the Ohio Nursing Board are indeed permanent.

See also my post on this blog from June 20, 2008. http://advocatefornurses.typepad.com/my2cents/2008/06/permanent-practice-restrictions-on-a-nursing-license-are-indeed-permanent.html

Again this is why its so important that you have an understanding of the long-term licensure, career, workplace, and regulation implications of the State Nursing Board legal documents you sign. There is an immediate rush after you just sign (so I am told) of "wow, this is finally over" and I have turned a turned a torn page in a long book.

But then the excitement and confidence wears off when you receive the ratified Agreement, Contract, Order, you speak with your case manager with the Board, you go to www.allnurses.com, and/or you start interviewing for nursing positions. Its a tough market even for nurses without an encumbered or restricted license and you start questioning whether your actions were proper and if this was the best resolution to the issue(s) at hand.

I have nurses who contact me a week, two weeks, or a month after they sign a contract, order, or agreement and ask what can I do? You are kidding right? A contract is a legally enforceable document and can only be modified by the consent of both parties. That is why it is extremely important that you read and review any State Nursing Board Consent Agreement, Agreed Order, Contract, or other legal document before you sign it.

Does the Facility Attorney Represent Your Interests in a Nursing Malpractice Case where a complaint is filed against you with the State Nursing Board?

I am seeing more cases where there is a pending or forthcoming nursing malpractice case and a complaint is filed against the nurse with the State Nursing Board. If you have a pending State Nursing Board complaint and you know or suspect litigation is forthcoming and you will be the subject or a subject in the litigation, please contact and speak with an attorney who is not employed by your facility or former employer. Consult with an attorney who is not connected to the forthcoming litigation about your license.

I have been involved in several cases where a complaint is filed against a nurse and the in-house attorney or the attorney retained by the healthcare facility (outside/external defense counsel) is "involved" with the nurse in the State Nursing Board complaint investigation and adjudication because nursing malpractice litigation is pending or forthcoming. 

You tell me whose interests is this particular attorney protecting, the healthcare facility or the nurse. While the interests of the nruse and the healthcare facility may be similiar and may line up together to a certain degree at some point those interests of the healthcare facility and the nurse may not be the same depending on the allegations in the malpractice complaint and what comes out in discovery and what is reported to the State Nursing Board.

Do yourself a favor and at least speak with an independent attorney or hire an attorney to represent you before the State Nursing Board and to serve as your own personal counsel in any nursing malpractice litigation. If you have professional liability insurance with a license defense benefit, contact your insurer.