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.

 

ABA Journal article on Contract Attorneys; Thank you Mom for being You

See http://www.abajournal.com/magazine/down_in_the_data_mines/.

I read this article three times. My advice, stop complaining. You have a job and you are an educated professional. You can always start your own law practice and build your own future and destiny.

Its so easy to complain. Who hasn't done scut work as an attorney?

The grass may not be greener on the other side however. You go from contract attorney to associate or staff attorney and find the only thing that changes is your title in some firms.

When I graduated from law school, I worked in a big firm because I had the grades, the money was nice, and this was the norm. But guess what? I was miserable and felt out of place from Day 1. I stayed for the experience and the money but left to do me.

My advice to contract attorney is do you. Find a position and hobbies that allow you to do you or start your own law practice or business or build a book of business that allows you to do you.

There are lot of attorneys that feel the same way contract attorney in the ABA article feels. I felt that way at one time and if I would have listened to my inner circle of friends and family, I would still be miserable. I always do the opposite of what my maternal grandmother who is my mom (I am thankful to have several moms living) tells me and it has served me right to this day.

1. Don't go to nursing school; pre-law is a good field.

2. Why are you working on a BSN when you will make the same amount of money with your two year degree?

3. Why would a nurse want to go to law school? I think you are a professional student.

4. Why would you leave a law firm when you have a secretary, a nice office, and make lots of money?

5. The majority of businesses fail in 5 years.

6. A law firm and a consulting firm. You don't know what you want to do with all that education.

7. Why would you take the Indiana Bar exam when you are already licensed in Ohio and Kentucky? You like to stress.

8. And my favorite, why would you buy a house with a swimming pool and hot tub when you don't like to get your hair wet and the chlorine will strip your relaxer?

Thank you Mom, for being you and for always propeling me forward.

ABA Releases A Study on Legal Malpractice Claims

See

http://www.abanet.org/abanet/media/release/news_release.cfm?releaseid=469.

The Study can be purchased for $80.00 at

http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=4140044.

I am superstitious, I will admit. I still do a number of the things when I see a black cat (bad luck) and I never walk underneath a ladder (bad luck), or place my purse on the floor (you will lose your money or have financial issues).

I am knocking on wood now in my office but I have never been sued for legal malpractice or nursing malpractice or had a complaint filed against me as an attorney or a nurse.

I had a client this summer threaten to report me to the Bar because I termed her and she was very upset. Being an administrative law attorney, I have to take steps to w/d consistent with the rules/code/canons (I practice law in 3 states), however I don't have to apply to the court before I cease representation of a client. I always follow a process before terming a client and 99% of the time it is because I am not being paid as agreed pursuant to the legal services agreement.

Actually now, I have two Nursing Board cases that have been resolved very favorably for the clients (Advisory Letters; no discipline proposed against the license) and both nurses have not paid their accounts in several months. I won't get the money and I know it. That's fine.

I won't sue for fees because as a nurse I could not imagine suing another nurse even in a business transaction. That's just me.

But guess what if you were investigated once by a Nursing Board, chances are at some point in the near future you will have another legal, regulatory, professional practice, criminal, employment, workplace, or licensure issue. I am unavailable until the initial account has been paid in full and I have my legal assistant provide the nurse with the local bar association attorney referral number.

Is the Billable Hour Dead? It is in My Law Practice

I am not sure however the discussions are interesting. Scott Turow article "The Billable Hour Must Die" in the ABA Journal www.abajournal.com this month was interesting.

The majority of my law practice involves disciplinary defense and I use flat fees exclusively in the majority of my law practice, except for NSO, HPSO, and Marsh Affinity licensure defense cases where I have to track my billable time. I am not saying by any means that I have "the" or "a" model disciplinary defense practice however I question whether insurance companies like NSO, HPSO, and Marsh Affinity will continue to pay hourly rates in these type of cases.

One reason to keep hourly billing in these cases (licensure defense where the nurses has a professional liability insurance policy) may be that the highest hourly rate paid for attorney fees in NSO/HPSO cases is $150.00 an hour. $150.00 may be considered low by attorneys in general and nurse attorneys with experience in licensure defense depending on the practice area and city/state location. Do you think a $150.00 hourly rate for nurse attorney or attorney representation in a licensure matter is reasonable?   

Would you as a nurse attorney or attorney take these types of cases on a flat fee basis? If so, what factors do you think should determine the flat fee?

Why do I use flat fees? The majority of nurses don't have professsional liability insurance and have to pay for their own attorney to defend their license before the Board of Nursing. The client knows upfront how much it will cost and doesn't have to be concerned about hourly fees and costs when he or she contacts me regarding the case several times a week. I still track my time on the cases and the time spent on emails, phone meetings, and in-person meetings however I don't want to focus on billing my client for each and every minute (or shall I say every 6 minutes because I track my time in 6 minute intervals) we spend in a phone meeting or for legal or nursing standard of care research.

I would much rather speak with a prosective client about a matter, analyze and review my notes, and quote the nurse a flat fee. I tried billable hours initially when I started disciplinary defense work and I didn't like it. It didn't feel right.

Do you use flat fees or other alternative billing arrangements in your law practice? Flat fees may not work in every case however you should consider how you can incorporate flat fees into your law practice. Its liberating not be tied to a stop watch or time clock.