nursinglawbandit

Workplace Incident to State Nursing Board Complaints to Career Blow Out to Professional Suicide and No Lawyer

The headline above is worst case scenario but it is a growing reality for a number of nurses who represent, counsel, and advise themselves in legal matters involving their license. I cannot tell you how important it is for nurses, whether you are a LPN, RN, or APRN to seek advise and counseling from a private nursing law attorney when a patient care or other significant issues arises in the nursing workplace. No one, whether it is your nurse manager, nurse supervisor, union rep, risk manager, etc. is going to say to you "You need to consult with your own attorney about this situation." I haven't heard it in my 11 years of solo practice in nurse license defense. Not once. Most of the time, a nurse contacts a nurse license defense attorney or nursing law attorney ONLY AFTER the defecation hits the ventilation: the complaint is filed with the State Nursing Board, your union rep tells you "you may need to resign instead of being fired", your employer terminates you and says "we are required to report this to the State Nursing Board", you receive a letter of Complaint from the State Nursing Board, you are told you are being named as a defendant in a nursing malpractice case, you are contacted by local law enforcement about the "incident three weeks ago", etc.

I often hear nurses say "I didn't know there were nursing practice attorneys or nursing law attorneys that help nurses." Yes, there are nursing practice attorneys and nursing law attorneys whose primary role is to assist nurses and/or other licensed healthcare professionals. See www.taana.org.

It is not the role of your nursing manager, nursing supervisor, nursing union representative, risk manager, or anyone else to counsel and advise you objectively about the seriousness of an incident from a licensure, career, employment, or credentialing perspective. This is the role of a private attorney who has experience in nurse license defense, nursing law, and professional nursing practice matters. And guess what? You can't find an attorney with this type of expertise and experience in the yellow pages usually.

Yes, you can call the attorney who handled your divorce, you call the attorney who has helped your extended family in a number of cases, you can put on a blind fold and open the yellow pages and pick an attorney and call for a "free consultation" about your specific issues which is usually a combination of nursing law, professional nursing practice, employment law, labor law, credentialing, criminal law, nursing negligence, etc. Guess what? That attorney will not PROBABLY NOT give you the answer you need because the attorney does not have experience in the area.

Also I am pleasantly surprised yet again by the number of attorneys who represent nurses before the State Nursing Board just to take a case and make a few bucks and who know little or nothing about what it takes to adequately and effectively defend a nurse before the Board and counsel and advise the nurse on attending matters. Is a nurse a nurse a nurse? Of course not. Therefore an attorney is not an attorney is not an attorney. Why do you want an attorney who practices primarily wills and trust representing you before the State Nursing Board? Is it better to have any attorney (regardless of whether or not the attorney has ever practiced before the Board or has experience advising nurses) as opposed to an attorney who can competently handle your case and assist you?

It is your case, your license, and your livelihood and this is a question you as the nurse should answer and consider when retaining counsel. I only practice in the areas of nurse license defense, nursing practice, and nursing law; no wills, no personal injury, no workers comp, etc. You don't have to retain me in Ohio, Kentucky or Indiana; just retain an attorney who can effectively represent you and who has experience representing nurses. Nurses as licensed healthcare professionals have different legal needs than your average consumer and this is significant in the context of representation. These cases are time intensive and you don't want an attorney to take your case and not work it like it should be worked.

What am I saying? I don't say much on the blog these days because my law practice is keeping me busy but I am getting fired up again because I am seeing where nurses are being TOO TRUSTING and not looking after and protecting THEIR LICENSE, CAREER, CREDENTIALS, and hard earned EDUCATION.

Sorry to say this but I am a nurse first also. Nurses are fungible; just look at how nursing employers terminated and discipline nurses: at the drop of a hat. A healthcare organization will fire a nurse with 25 years of experience and loyalty to the organization just as fast as it will terminate a new employee. If you pass gas (and you are not a CRNA :) on a patient care unit, you will be terminated and reported to the State Nursing Board because it "looks better" from a liability, public relations, and accreditation perspective.

But guess what, more facilities are throwing nurse supervisors, nurse managers, and nurse executives to the wolves and under the bus also. This does make me feel better and it shouldn't please you either because it typifies the harsh reality & environment of nursing practice now. More nurse managers and nurse executives are being terminated and I am receiving more and more of these calls and these nurse managers and nurse executives are also being reported to the State Nursing Board.

What am I saying?

1. You know your practice area, don't you? If something happens and its triggers an investigation in the workplace and you are involved, get your own attorney involved to review the situation with you and give you OBJECTIVE legal advice and counseling. You need to have your own Nursing Practice and Nursing Law counsel you can consult with about situations which happen in the workplace. If you are a nurse supervisor, nurse manager, and nurse executive, are you aware of your exposure?

2. Stop listening to the advice and counseling of everyone and their momma about the seriousness of an incident. It is human nature to underestimate the seriousness of an incident to a friend, colleague, or relative because you don't want the worry the person and you want the best for the person.

If I call one of my grandmother's right now and say "mom, I slapped someone and I may be charged criminally", the response will be "it is going to be okay. You are a good person. Who did you slap?  and "I know you type a lot, did you hurt your hand when you slapped this person?"

This may help me feel better emotionally but it certainly doesn't help me deal with the criminal, licensure, legal, and career implications of pimp slapping someone.

By the way, my little sister's 1 y/o son, open hand slapped me so hard (yes, he pimp slapped me) he knocked my glasses off. My sister says he picked this up this behavior in daycare and/or watching cartoons. Really? This was last month and I still smile about it daily. Thank you Baby Chris for putting a smile on Auntie's face whenever I think of you!!!

3. Nurses don't have the income and prestige of dentists or physicians but nurses certainly have similiar liability just a different context. http://www.nso.com/. Take a look at the report, Understanding Nurse Liability from 2006-2010 from Nursing Service Organization.

The public is more aware than ever that you can be sued and you can be reported to a licensing board. Nurses are not self-employed like most dentists and physicians and therefore USUALLY do not have a personal and private attorney for practice, workplace, and career issues. This should not prevent you from consulting with an attorney even if it is one a time basis.

Most nurse attorneys or license defense attorneys may offer a legal consultation. Pay the money and consult with an attorney. It is only your License, Livelihood, and Career on the line. I receive at least 10-35 calls or emails a month from nurses who need legal services but do not want to pay for a legal consultation or legal services. Attorneys like nurses don't work from free (this one doesn't anyway) and it is worth the money to consult with an attorney for a few hundred dollars rather than gamble with your career, isn't it?

I never represent myself. Why would I because I am biased and I would see the facts as I want to see the facts. This is human nature and this is why now more than ever it is important for nurses, a front-line providers who work as at-will employed nurses or who are part of bargaining unit, to consult with a private nursing law or nursing practice attorney about situations in the workplace. Gone are the days when you could say a hospital, nursing home, or healthcare organizations acted in the best interest of its employees; an organization asks what is in the best interest of the organization, right? It is the role of YOUR ATTORNEY to ask what is in the best interest of YOU, as a licensed nurse.

4. If you can, try to negotiate an individual employment contract with a healthcare organization which afford you the same rights physicians have in the medical staff bylaws. Individuals employment contracts hold power for nurses; it is not at-will employment or even collective bargaining. The future of nursing should be Nursing Staff Bylaws and Individual Employment Contracts for All Nurses.

Yes, I said it and I stand by it. I am on the front lines of representation because my clients are front line and bedside providers. The future of nursing lies in securing power and negotiating a seat at the table in healthcare and in the nursing workplace; this power can be obtained in Nursing Staff Bylaws and Individual Employment Contracts not Collective Bargaining Agreements and certainly not At-Will Employment, which is for the birds. This is my opinion and you should have your own opinion. You can email me until the cows come home baby and I will not change my opinion which has been solidified from years of nurse license defense practice and actual nursing practice in a variety of healthcare settings. I seriously doubt I will see cows in my backyard at my home or my office; maybe deer at my home but certainly not cows. Also I don't eat meat, but I may start again, if I see a cow in my backyard.

 

What is it with Nurses and Doctors and Paralegals and Attorneys?

See this article on the ABA Journal website and review the comments.

http://www.abajournal.com/news/paralegals_outrank_lawyers_on_best_jobs_list

One commenter remarked:

A good paralegal knows her place and will fetch the summer associate’s coffee when called to do so.  In any case, a paralegal is to a nurse, as a lawyer is to a doctor.  Why do a half-assed job in climbing the career ladder when you could achieve so much more by making your way to the top.

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I must admit when I worked in a law firm, you could feel the tension between the attorneys and the paralegals, especially the new attorneys. The paralegals remarked the new associates and attorneys didn't know anything and the paralegals had to train the new lawyers.

Its the same with first year residents in a teaching hospital and the remarks made by seasoned nurses, as to "training" the residents.

I smile whenever I hear a paralegal remark "we can do whatever an attorney can do except appear in court." Really?  

I also smile when I hear nurses remark on how exciting it will be to be a legal nurse consultant or work with or for attorneys because they are tired of working with physicians. As if working with attorneys will be any different.

What is it with nurse and physicians? Paralegal and attorneys? Is it the differences in education, salary, career prestige, scope of practice, and autonomy? 

 

I am An Attorney therefore should I become accustomed to lies, deceit, and deception?

I am frustrated because I have several cases where I suspected a nurse had a chemical dependency however the client denied a dependency issue. These are licensure defense cases where I am representing a nurse before the Board of Nursing based on a complaint filed against her/her license.

How do you deal with clients who provide you false, inaccurate, or untruthful assertions and information?

I will ask bluntly, how you effectively and adequately represent, counsel, and advise a liar?

Everyone is human and we all do things we regret and make mistakes.

What pisses me off are clients who lie to me and I am their attorney of record. There are so many others a client can lie to like their significant other, spouse, parents, children, etc., so why lie to your attorney when its my job to represent, counsel, and advise you in a legal matter that impacts your license, live, and your livelihood!!!!!!!

I apologize for this rant. I was reared and I am a Baptist. I am not religious but I believe in God. I was not allowed to even use the word "lie" until I was 18 and even now my grandmother still looks at me funny when I use the word. My grandmother always told us there is nothing worse than a liar and a thief.

Maybe I am being dramatic as my 19 y/o son tells me I am a drama queen but I am upset about a particular case where a client's untruthful assertions have caused significant harm to his case and I would have represented, counseled, and advised him differently IF he gave me the "skinny" earlier.

Does being an attorney or a defense attorney mean that you have to become accustomed to lies, deceit, and deception? 

Declined to Meet with a Prospective Client and His Mother

The more you practice you can pinpoint those cases that you will regret taking or the one's that you say "I knew better." When you are new and growing your practice you take on those cases for the challenge, sometimes and most time for the additional income.

Several years ago I would have taken this case but not now. This is my 11th year of law practice, 7 years as solo and I get a "gut feeling" when there is going to be trouble with a representation.

A mother contacted me about representing her son, who is studying for his RN Boards. The son did not disclose a criminal conviction to the Board as required. I agreed to meet with the mother and son asap. The son is an adult in his early twenties. The mother contacted me several times after I spoke with her initially and several times the next day, just a few hours before the consultation.

When I spoke with the mother, she was agitated and asking me for legal advice about how her son should proceed. I indicated we are meeting soon and we can discuss this. The mother became agitated and informed me "I wasn't answering the question asked."

I informed the mother I was not available for the consultation or representation and that she could have the son contact me and I would refer him to another licensure defense attorney. I abruptly ended the conversation with the mother.

I have this issue now in case where a parent wants to be overly involved in the legal representation and I have to remind the parent that I represent the nurse regardless of who pays for my representation.

I declined to meet with the prospective client and his mother. I can imagine this parent calling me two or four times a week for case updates in an administrative law case and second guessing my legal advice and counseling provided to her child. No sir re bob, not me. Been there, done it and not doing it again. Its not worth it!

As a self-employed nurse attorney and small business owner, of course I could use the money generated from the legal consultation and/or representation. But I decline.....

Payment for Services

I should have known better. I did several hours of consulting work on a case for a large teaching university in December. I submitted my invoice in January 2008 electronically. Fast forward to April 2008 and I still have not been paid.

I assumed because this was a large teaching university and I could submit my bill electronically that I would receive prompt payment. My idea of prompt for a large institution is 15-30 days. Its been 90 days. I varied from my normal routine in this particular matter of requiring a true retainer. I don't utilize traditional retainers in my law practice.

It won't happen again.

Ancillary Businesses for Attorneys & Law Firms

There is an interesting article on the ABA Journal Law News Now website about law firm ancillary business practices. See http://www.abajournal.com/news/law_firms_selling_off_ancillary_businesses/.

In addition to having a law firm, I also have a consulting firm, The Healthcare Risk Aversion Group, LLC that offers medical-legal consulting services to the healthcare community. I offer legal CE for nurses and expert witness services.

While I have no plans to sell off or dissolve my consulting firm, the far majority of my time is spent practicing law and not consulting. When I started my LLCs in 2001, I assumed that it would be my consulting practice that took off and blossomed, not my law practice.

My bread and butter is my law practice and my representation of nurses before the Ohio, Kentucky, and Indiana Boards of Nursing. I do have a few ideas for my consulting practice that I plan to launch in 2008 and pitch to hospitals and other large nursing employers.

I launched the Ohio Directing RN and LPN-IP Professional Services Contract in 2007 through my consulting firm.

The headache associated with an ancillary practice is navigating the ethical canons and complying with the attorney marketing and advertising rules. The same rules that apply to law firm marketing apply to ancillary businesses owned by attorneys.

Job Market for Attorneys and Law Students

The Wall Street Journal http://online.wsj.com/article/SB119040786780835602.html  article on the job market for law students and attorneys is creating a buzz on legal blogs.

The article warns that most attorneys don't make an entry level salary of $120,000 to $160,000 seen with large law firms in the larger cities. The article also states that some law school graduates are having a hard time finding legal employment, some of the employment is as a contract attorney with no benefits, and most law graduates are graduating with student loan debt from undergraduate and law school in the tens or hundreds of thousand dollar range.

I borrowed more money than needed to attend nursing and law school because of necessity. I was a single mom but in hindsight I still should have borrowed less. I borrowed less than $50,000 combined for both my private nursing education (Xavier University) and public law school education (University of Cincinnati). One of my financial goals, is to pay off my consolidated loan in 5 years.

If you combine and defer your undergraduate and law school loans, PLEASE consider paying on the interest; that's what kills you and keeps you awake at night because in a matter of years, $75,000.00 can turn into $110,000 easily.

I was clueless when I attended law school from 1994-1997. I didn't know anything about the job market and I was told to clerk at the largest firms that I could because I had the grades. I just knew I wanted to be a nurse attorney and help nurses. I clerked at two large law firms my first and second year of law school and worked for another law firm after graduation for almost two years. Did you clerk during law school? What was your experience?

I determined early (1st week of my 1st year clerkship) that I didn't want to work in a large firm, but the salary was nice and I needed the money and the experience.

I am a solo now and I celebrated my sixth year in solo practice this year. The job market for attorneys and law students is what you make of it. 

You have a J.D. and depending upon what you majored in undergrad or your employment before, during, and after law school, you can leverage your knowledge, skill, and abilities to create your ideal position. Most folks want things handed to them and this surprises me even as a Generation Xer.

This is my ideal position being a home health RN, solo attorney, and consultant. I am self-employed and I network, market, and advertise to create additional opportunities in the future.

What is your ideal position?

Nursing Law Experts and Nursing Experts

An article in the August 30th edition of the New York Lawyer (you must register online to view the article) mentioned that Intellectual Property (IP) experts generally command $250 to $450 an hour. Some of the more renowed and qualified IP specialists command $10,000 a day ($1,250 an hour for an eight hour/full day of work) and at least IP specialists commands $2,000 an hour. See http://www.nylawyer.com/display.php/file=/news/07/08/083007h

What are nursing experts, nursing specialists, nurse consultants, and nursing law experts commanding for hourly rates? I see ads that mention a LNC can earn anywhere from $75.00 to $150.00 an hour. As an attorney I have reviewed a number of contracts for nursing consultants and have seen hourly rates from $150.00 to $250.00 depending on the education, expertise, and experience of the nurse.

Most of the legal work in my law firm is based on a flat fee. However I must admit, I have been fascinated by hourly fees and hourly billing here lately (as indicated by the number of posts on hourly fees and billing this month).

Do You Blog? If not, then at least build a website

I am surprised that more nurse attorneys, especially those of us who are solo practitioners and practice in the licensure defense area don't have a blog or a website. A website should be a minimum with a blog being optional.

I always ask nurses who contact my firm how did they hear about my law practice. I receive a significant amount of contacts from nurses in Ohio, Kentucky, and Indiana who found my website, www.nursing-jurisprudence.com and who then read my blog, www.advocatefornurses.typepad.com. I receive referrals from state nurses associations, advertisement, nurses who have read an article or heard me speak at a conference, etc.

I maintain my own website with www.networksolutions.com. I use www.typepad.com for my blog. I know another nurse attorney who uses www.blogspot.com. See www.nurseattorney.blogspot.com which is Texas Attorney Taralynn Mackay, RN, JD's blog covering nursing issues, risk management issues, license defense and the law.

I change the format, colors, and design of my website and blogs as frequently as I change hair styles (okay not that frequently). This is the freedom that comes along with owning your own business and doing it your way.

I didn't pay thousands of dollars for someone to design my website or blog. I rather spend that type of money spoiling myself or my dogs, my only child, or my nieces and nephews.