Nursing Law & Order

State Nursing Board Non-Compliance: If It Ain't Rough, It Ain't Right!

Thank you again to a client who had to remind me three times, yes three times to change the picture on my blog and facebook pages. I have lost a lot of weight (almost 60 pounds) and I am wearing my hair differently, so here is my new picture. 

The law practice has been extremely busy this year and thank you again to those of you who retained my services. I am noticing over the last few months, the Board cases are becoming increasingly more complex with personal, mental health, impairment, practice, or criminal aspects. 

I reviewed and revised my Legal Services Agreement to reflect the changes I am seeing in my law practice. 

1. I fire clients more readily now than in the past for not providing us with the requested information in a timely manner because this slows down the processing and reviewing of information and can lead to me being unprepared for a hearing, investigative meeting, appearance, etc. If you want a lawyer who will forget you were supposed to send in your performance evals, update your prescription meds, etc., then don't retain me. I will remember, there is a task in my project management software, AND it is in my hand-written and barely legible notes. 

2. I have a paralegal who works with me part-time and her role is exclusively Client Service, Management, and Scheduling. This has been wonderful! Thanks, Dani. 

3. I like what I do and I like who I am. Therefore I am announcing: I am a workaholic and I am proud of it. No excuses anymore like "oh, it is the nature of the beast" or "I really don't work that hard." I do work hard and I enjoy it. Therefore I am looking for another part-time paralegal to work Monday, Friday, Saturday, and Sunday in the afternoons. Also my boss is nuts and she keeps giving me work at all times of the day. 

4. Non-compliance, non-compliance, and more non-compliance. Are you non-compliant? Hell, I am non-compliant with my personal monitoring.  

If you are struggling with State Nursing Board probation and monitoring or compliance with an alternative to discipline program, get some help. Retain a lawyer to assist you. I receive more and more calls related to compliance issues than I used to because non-compliance with a contract results in breach of the contract, i.e. the suspension of a license or the inability to practice nursing. 

Why would you hire a lawyer after you have resolved your State Nursing Board case on your own? Because you need help, because you don't really understand why or what you signed and initialed fifty times, or because you have a few extra thousand dollars in your night stand. 

Life happens when you are being monitored by the State Nursing Board. Things will come up and down during a 1 to 5 year period you are being watched by the Board. Who are you going to call for assistance? Your State Nurses Association, Your Union, Your Employer, or Your Cute Lawyer. Look at my current picture and tell me who do you want to call? Call me. 

I revised my legal services agreement because in the future, I am executing another flat fee agreement when patterns of non-compliance emerge. My best friend says "if it ain't rough for some, it ain't right." This should NOT be your Motto during State Nursing Board Monitoring; maybe in other contexts but certainly not in the healthcare licensing setting.  

5. Nurses, Self-Employment, and Private Practice

I am being contacted by more APRNs in Ohio, Kentucky, and Indiana who own their own business or are planning to provide primary health services. Please keep in mind when you open a business providing healthcare services, you will need a general business attorney AND an attorney like cute lawyer to help you with nursing law, regulatory compliance, and risk management. 

I am seeing more self-employed nurses who open shop and just practice. You do so at your own peril because healthcare is highly regulated and you are assuming too much unnecessary risk, exposure, and potential liability. Yes, it costs money for specialized legal services but it is a cost of doing business in healthcare. I see this with Independent Providers, RNs and LPNs in Ohio also as well as CNS and RNs who own businesses. You cannot practice in your business and run your business without some type of risk management and regulatory compliance plan. You can but the consequences for nurses are swift and cold.

 

 

Patient Safety and Medical Liability Reform

See http://www.whitehouse.gov/the_press_office/FACT-SHEET-Patient-Safety-and-Medical-Liability-Reform-Demonstration/.

Where does nursing fit into this equation? What do you think?

Negligence to Malpractice: the Professional Practice of Nursing is Evolving

The Center for American Nurses has recently published a new e-book on nursing negligence and malpractice, the title is "Negligence to Malpractice: the Professional Practice of Nursing is Evolving."

http://www.can.affiniscape.com/storelistitem.cfm?itemnumber=22

The e-book can be purchased for $9.95 at the Center for American Nurses website at www.centerforamericannurses.org. Click on the link above or go the Center's website and click on the link for the Online store.

Nurses Can Offer Expert Medical Opinions under Pennsylvania's 2002 MCARE Act

See http://www.law.com/jsp/article.jsp?id=1202431513266&rss=pa

See also http://www.taana.org/

The Unthinkable Happens: A Patient Dies or Is Severely Injured While in Your Care and Negligence is Alleged

If a patient dies and is injured while under your care as a nurse and allegations of negligence surface (you didn't do this correctly, you did not follow this procedure, you should have done this, you did not recognize this, you failed to assess this, you failed to process this which would have resulted in that, etc.) you need to make careful and informed decisions on how to proceed.

This is probably one of the worst things that can happen to you as a nurse. You are dealing with a variety of issues and emotions and trying to decide the best way to proceed in light of a terrible event.

Remember, the healthcare facility attorney or risk manager is the healthcare facility attorney or risk manager. Their role and job description involves protecting the interests of the facility first and foremost. Their primary concern is protection of the facility which may include of course dealings with you as an employee, former employee, or independent contractor, etc. in this incident.

This is very important to remember because unfortunately some nurses when these types of serious cases arise mistakenly follow the advice the healthcare facility attorney or risk manager as opposed to seeking independent legal counsel with a private attorney not associated with the facility.

The facility attorney or risk manager may be thinking about malpractice and mitigating the risks of possible medical malpractice/nursing negligence, federal or state regulatory agency investigations, root cause analysis, sentinel events,  accreditation, public reaction to this event, etc.  

As a nurse you should also consider and prepare for the probability of being named in a med mal or negligence lawsuit. However MORE importantly you should also think about your license and the forthcoming Nursing Board investigation and adjudication and the possibility of a criminal investigation and indictment related to the criminalization of a medical error.

Talk to someone from your state nurses association, a license defense attorney or criminal defense attorney as soon as possible. This is not the time to follow the watercooler advice provided by other nurses in an online chatroom or the advice of well meaning family membes and colleagues.

Nurse as a Custodian vs. Nurse as a Clinician Malpractice Lawsuits

I love this CNA Claims Study for Nurses! See page 36 of the Study which discusses the difference between the Nurse as a Custodian vs. the Nurse as the Clinician law suits. https://www.nso.com/pdfs/db/rnclaimstudy.pdf?fileName=rnclaimstudy.pdf&folder=pdfs/db&isLiveStr=Y&refID=rnclaim

As I have said before on this blog, with increased scope of practice, comes an increase in responsibility, an increase in accountability, and the potential for an increase in liability.

Nurses are more likely to be seen by plaintiff attorneys now as clinicians exercising professional judgment rather than custodians following physician orders from decades past.

RN argued Good Samaritan Defense in Med Mal Case; Her Motion to Dismiss was Denied

Don't believe the hype when folks tell you as a nurse you will not be used if you act as a Good Samaritan, the law is on your side in these cases, and the case if you are sued will be easily dismissed.

This case is all the more reason to consider having your own professional liability insurance that will provide coverage for reckless or gross negligence conduct that is held to be outside and beyond the ordinary care standards used in Good Samaritan statutes. Gross negligence or reckless conduct is a question for the jury or a judge in a bench trial and the case will proceed pass the preliminary motions.

You cannot always anticipate situations and settings where you will provide nursing care.

See this article that appears on www.law.com at http://www.law.com/jsp/article.jsp?id=1202427227499.

Here is the cut and paste:

'Good Samaritan' Defense Fails to Win Dismissal of Med-Mal Suit

Vesselin Mitev
New York Law Journal
January 6, 2009

A self-described student who was present at the birth of a stillborn child cannot use the "Good Samaritan" defense in her attempt to persuade the court to dismiss a medical malpractice claim against her, a New York state judge has ruled.

Citing deposition testimony of the parties involved in the July 2004 birth, Supreme Court Justice William R. LaMarca held in Lacy v. My Midwife, P.C., 1719/06, that there was sufficient evidence to raise a question of fact as to Julia Chachere's "claim of lack of involvement, i.e. that there is no medical malpractice on her part."

In January 2004, Tiffany Lacy discovered she was carrying twins after a sonogram, according to the decision. Ms. Lacy and her husband, James, were seeking a home birth and were under the care of Janet L. Titmus-Delettera, a midwife who is another defendant in the case.

In June 2004, Titmus-Delettera diagnosed one of the twins with a decelerated heart rate. The heart rate was re-checked at a local hospital and found to have stabilized. The couple then sought to have the birth at Nassau University Medical Center but Titmus-Delettera lacked birthing privileges there and she also was not credentialed for multiple births, according to the decision.

The hospital offered to admit Ms. Lacy under a physician's care, but the offer was allegedly refused. Ms. Lacy gave birth at home on July 1, 2004. The cause of death of the stillborn infant was listed as "undetermined."

The couple then sued for medical malpractice.

Chachere, a registered nurse, argued that she was simply a "lay student observer" who was invited to the birth by Titmus-Delettera. She claimed she observed, took pictures and entered information on a chart. After the delivery, Chachere injected Ms. Lacy, at Titmus-Delettera's direction, with an anti-hemorrhaging agent, according to the decision.

Chachere offered the affidavit of Dr. Stephen Chasen, a board-certified physician who noted that Chachere was not involved with any prenatal or postnatal care of Ms. Lacy. Chasen stated that the childbirth complications stemmed from "inappropriate documentation of the fetal heart rate in a house delivery setting," for which Chachere was not responsible.

However, at a deposition, Ms. Lacy testified that Chachere became "actively involved" in the delivery procedures. Another midwife present at the birth, Louisa Walker, testified that Chachere "did resuscitation efforts" on the stillborn infant.

Walker, a named defendant who co-owned the midwife business with Titmus-Delettera, testified that Chachere expressed concern about the birth because Ms. Lacy was past her due date and the delivery of the twins was taking place in a home.

"Clearly, the ... deposition testimony reflects that Ms. Chachere was present for more than to only observe and take pictures," Justice LaMarca wrote.

The judge then analyzed the burden-shifting framework of a medical malpractice summary judgment motion. Noting that Chachere had met her burden of submitting evidence indicating she did not "depart from good and accepted medical practice or that the plaintiff was not injured thereby," he said the burden then shifted to the Lacys to show proof of a triable issue of fact.

Dr. Martin Gubernick, an expert witness for the Lacys, submitted an affidavit alleging that Chachere, who "became an integral part of the birthing team," should have taken "action and affirmative steps" in providing Ms. Lacy with emergency medical treatment.

LaMarca credited Gubernick's affidavit, along with the deposition testimony of the other parties involved, as evidence that Chachere played a larger role in the delivery. Thus, he concluded, issues of fact remained.

"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradicted or not, are issues for the trier of facts," the judge wrote, citing Lelekakis v. Kamamis, 41 AD3d 662, among others rulings.

GOOD SAMARITAN DEFENSE

Further, LaMarca held, Chachere could not rely on §690 of the Education Law, commonly known as the "Good Samaritan" provision, as a defense.

That section provides that "any licensed registered professional nurse ... who voluntarily ... renders first aid or emergency treatment ... shall not be liable for damages for injuries" unless it is established that injuries or death were caused "by gross negligence" on the part of the nurse rendering treatment.

Here, the judge wrote, "the issue of whether gross negligence occurred is an issue for the trier of facts to determine." Additionally, he held, an issue of fact remained as to whether Chachere's status at the birth would fall under the Good Samaritan law.

Neil Ptashnik, whose firm represents Chachere, called the ruling "absurd." He said Chachere was studying to become a midwife. To become a licensed midwife in New York, one must complete both clinical courses and go through supervised practical training.

It was unclear if Chachere had since completed the necessary requirements.

Ptashnik said Chachere was not involved with the decision to go ahead with a "high-risk birth" outside of a hospital.

"My client did not in any way participate in the actual delivery," said Ptashnik, of Ptashnik & Associates in Manhattan. Asked about the alleged resuscitation efforts undertaken by Chachere, he added, "Even if that were the case, if someone is stillborn the negligence is not in failing to resuscitate."

A decision on whether to appeal has not been made, according to Ptashnik.

The ruling also surprised Patchogue, N.Y., attorney Benjamin L. Herzweig, who previously represented Titmus-Delettera in the case.

"No good deed goes unpunished," he said, adding that Chachere remained an observer throughout the birth and did not become involved until after delivery and then only to administer an injection to stop hemorrhaging.

Nitkewicz & McMahon of Commack, N.Y., represent the Lacys.

Vardaro & Helwig of Smithtown, N.Y., represent Walker.

Joanne Sheehan and the Nurse as a Civil Defendant

Joanne Sheehan's presentation was very informative. She is a very experienced plaintiff's malpractice attorney and a RN and she gave very insightful comments on the Nurse as a Civil Defendant.

For additional information about Joanne, see her bio on the firm's website at http://www.fnlslaw.com/joanne_sheehan.html

Joanne and I had a conversation before the webinar and she discussed this also during the question and answer period whether nurses concern about being named as defendant in a nursing malpractice case is misplaced considering that a nurse is more likely to be reported to the State Nursing Board and investigated than the nurse is to be named as defendant in a malpractice case. Yet the focus for nurses tends to be on nursing negligence and nursing malpractice.

She also discouraged nurses from keeping journals of patient care activities because this information may be discoverable in a lawsuit unless its protected by the attorney-client privilege. Some nurse attorney recommend nurses kept their own journals and logs outside of the medical record. I don't recommend this from my younger years as a med mal defense attorney. Say it in the medical record and you don't need to keep a contemporaneous record. Also you are more likely to write subjective comments and off color remarks in this journal.  

There were nurses from around country as interest in the legal webinars is growing. For additional information about the legal webinars, see www.centerforamericannurses.org.

As a Nurse, You May Be Named as a Defendant in a Lawsuit

A Cincinnati couple is suing companies and health-care workers they insist were more concerned about making a profit from the organs and tissue of a dead teenager than respecting the wishes of grieving parents. A RN is a named defendant in the lawsuit.

The couple said they filed the suit because they don't want other families to suffer the trauma they did when their daughter's eyes were taken without permission.

http://news.enquirer.com/assets/AB11015366.PDF

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Unless these nurses have their own professional liability insurance policy, they will depend on the defense and legal representation provided by their employers. Having your own legal counsel provides you with a voice because your interests in the lawsuit may not be the same as the interests of your employer as the litigation and discovery process unfolds.

Its an uncomfortable position especially when you are named defendant and you don't have your own professional liability insurance. Also depending on the resolution of the lawsuit or maybe even before the resolution of the lawsuit, the nurses may be investigated by the Ohio Board of Nursing if the family files a complaint against the nurses.

Testimony of a MSN Prepared Nurse Midwife Admissible

See Tabitha N.S. vs. Zimmerman, 2008-Ohio 1639. This was a wrongful death and survival action alleging medical malpractice and negligence against the hospital, physician, and OB nurses in the hospital.

In this case the appellate court found the trial court did not abuse its discretion by allowing a Nurse Midwife and former obstetrical nurse to testify on the standard of care for OB nurses as to alleged negligence of the hospital nurses in support of the claim against the hospital on the theory of respondeat superior in a medical malpractice action.

The nurse expert witness of the plaintiff was called as a medical expert. The nurse expert testified that she graduated from nursing school in 1976, and went on to specialize in obstetrical nursing. She also holds a master's degree in nursing. She worked as a registered nurse in labor and delivery until 1983, when she went to midwifery school; she then took and passed the exam required for certification as a nurse midwife. Since that time, she has worked as a registered nurse and certified nurse midwife. At the time of trial, she was working as a nurse midwife at a medical practice in Grand Rapids, Michigan. She further testified that she is also certified as a family nurse practitioner and works part-time at a medical office.

She is certified in fetal monitoring and is a member of the faculty at the College of Nursing at Grand Valley State University, where she teaches obstetrical nursing. She testified that as a midwife she monitors women prenatally, attends labor and delivery and provides care after childbirth. She further testified that she has cared for and evaluated women in pre-term labor and has performed vaginal examinations on pregnant women in order to assess pre-term labor. She also has experience in assessing whether a woman is having contractions, as well as in determining the position of a baby prior to delivery.

The defense objected to the testimony. The jury returned a verdict against defendants. A judgment entry awarding on the survival claim economic damages of $390,000 and non-economic damages of $500,000 and, on the wrongful death claim, the jury awarded compensatory damages of $2,000,000.

On appeal, the appellate court noted that an expert witness need only aid the trier of fact in the search for the truth and need not be the best witness on the subject.

The court noted the nurse midwife's testimony clearly set forth her many years of experience in the area of obstetrical nursing, including labor and delivery. Although the expert witness no longer working in a hospital setting, her experience in the field of obstetrical nursing was ongoing at the time of trial.

The appellate court found the nurse expert witness demonstrated that she had some degree of "specialized knowledge, skill, experience, training and education" in the field in which she sought to render an expert opinion.

Nursing Malpractice Case and the Nursing Board

Did you know if you are named in a nursing malpractice case and a settlement is made on your behalf this information is reported to the National Practitioner Data Bank (NPDB) and your State Board of Nursing will be notified? See http://www.npdb-hipdb.hrsa.gov/

This is a summary of email I received from a Nurse who was named as a defendant in a medical malpractice case, the case was settled, and now the nurse is being investigated by the Nursing Board.

I was named in the medical malpractice lawsuit. The case was settled and a report was filed with the NPDB. The Nursing Board has now contacted me to do their own investigation since the insurance carrier had to report my name to the NPDB. I am currently seeking counsel to represent me.

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This nurse had her own professional liability insurance policy with a national insurance company that provided her with her OWN legal counsel, distinct from the Hospital's legal counsel and the Surgeon's legal counsel, in the medical malpractice case. Her insurance company will also cover the costs associated with defending her license before the Nursing Board.

I don't think anyone goes to work and says "I am going to do something that gets me sued today" or "I am going to do something that gets me reported to the Nursing Board."  Consider purchasing your own individual professional liability insurance policy with a licensure defense benefit.

You have medical insurance?

You have dental insurance?

You have life insurance?

You have car insurance?

You have professional liability insurance? Its the same principle.